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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-605-12/2020
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WA-22NCC-605-12/2020
High Court of Malaysia13 Mar 2025
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“Act 1953 given TSS's alleged fraudulent concealment of his ownership interest in CIDL. f) Whether the Plaintiffs' action against TSS's United Kingdom Estate was time-barred under Section 8(3) of the Civil Law Act 1956 in circumstances involving fraudulent concealment. S/N Yvwtb2AFpk50KUgpFho0w **Note : Serial number wi”
“as General Manager of Finance. They submit that the fiduciary relationship arises from her senior management role, regardless of whether she falls within the statutory duties under Section 213 of the Companies Act 2016. The Plaintiffs argue that Fai Fong breached these fiduciary duties in multiple ways, including: fail”
“ne.” Similarly, there is no obligation on the Plaintiffs to produce evidence disproving the defendants' assertion about the housing allowance. [131] Any adverse inference under Section 114(g) of the Evidence Act 1950 would operate against Pacific Victor and Maria for failing to call Lee Ying Kit, not against the Plaint”
“opined that the Management Agreement and Addendum are void due to TSS's failure to disclose his interest in CIDL, which breached Article 27 of YIL's Articles of Association and Section 162(1) of the Hong Kong Companies Ordinance. He concluded that the board resolutions authorising the agreements were inquorate, that TS”
“o provide opinions on whether the agreements are void or S/N Yvwtb2AFpk50KUgpFho0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 35 voidable under Hong Kong's Companies Ordinance and YIL's Articles of Association, and what remedies would be available. He opined that t”
“(“Maria”), the widow of TSS, is the sole shareholder and a director of Pacific Victor. [23] On 9.10.2020, Yong Chooi Lan, allegedly one of the mistresses of TSS, issued a statutory demand under the Insolvency Act of the BVI demanding the payment of USD3 million from GP BVI allegedly loaned by Yong Chooi Lan to GP BVI (”
“expertise on the validity of the CIDL Management Agreement under Hong S/N Yvwtb2AFpk50KUgpFho0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 68 Kong's Companies Ordinance and YIL's Articles of Association is appropriate, even though it relies on the factual assumptio”
“d fraudulently utilised it to siphon RMB166,102,428.00 from the Gplus Group through sham management agreements and compensation payments. e) Whether the Plaintiffs' claims were time-barred under the Limitation Act 1953 given TSS's alleged fraudulent concealment of his ownership interest in CIDL. f) Whether the Plaintif”
“ndemnation of the defendant's behavior and to deter similar conduct in the future. [597] The principles governing the award of exemplary damages in Malaysia are well-established. In Rookes v Barnard [1964] AC 1129 (HL), which has been adopted in Malaysia, Lord Devlin identified categories where exemplary damages may be”
“that the Plaintiffs should only be allowed to seek costs in relation to services rendered by their lead Counsel alone, citing the case of Fish & Co Restaurants Pte Ltd v Revenue Valley Sdn Bhd & Ors [2010] CLJU 432 (HC). [674] Order 59 Rule 14 of the Rules of Court 2012 provides: S/N Yvwtb2AFpk50KUgpFho0w **Note : Seri”
“5] Andrew and Yong Chooi Lan’s argument that the claim is not actionable because the winding up of GP BVI did not materialise is without merit. As established in Li Siu Lun v Looi Kok Poh and another [2015] SGHC 149, in conspiracy cases “damages are at large and the court is S/N Yvwtb2AFpk50KUgpFho0w **Note : Serial nu”
“ponse to the failure of the conspirators' previous attempt to regain control of Golden Plus through the fraudulent share allotment scheme. In Yap Sau Choon@Yap Bee Yong & Anor v Cheong Hong Mun & Ors [2016] MLJU 1203 (HC), the court emphasised that the burden of proof in civil fraud cases is met on the balance of proba”
“ill be used to verify the originality of this document via eFILING portal 107 often circumstantial, regarding the defendants' overt acts. This approach is supported by Lakatamia Shipping Co Ltd v Su [2021] EWHC 1907 (Comm), where the English High Court observed that much of the evidence is likely to be circumstantial e”
“Loan, attempts to take possession of the 23 Titles, and attempts to wind up Golden Plus. They rely on the High Court decision in Pacific & Orient Insurance Co Bhd v Mohammad Hafizi bin Bahari & Anor [2023] MLJ 933 to argue that pleadings must expressly state which type of conspiracy is being relied upon. The Defendants”
“loss. They further submit that the RM346,810 in legal costs cannot be recovered as they were not specifically pleaded as special damages, and cite Golden Star v Ling Peek Hoe & Anor & Another Appeal [2024] CLJU 819 (FC) to argue that costs from one proceeding cannot be recovered in another. [135] After careful consider”
“ship with Golden Plus. S/N Yvwtb2AFpk50KUgpFho0w **Note : Serial number will be used to verify the originality of this document via eFILING portal 246 [456] In Zainol Zakaria v UEM Builders Berhad [2019] MELRU 2695, a decision of the Industrial Court which has been affirmed by the High Court on Judicial Review, it was”
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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: WA-22NCC-605-12/2020
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GOLDEN PLUS HOLDINGS BERHAD (Company No. 198401000555
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GOLDEN PLUS CONSTRUCTION SDN BHD (Company No. 199301030087
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GOLDEN PLUS (BVI) PTE LTD (British Virgin Islands Company No. 126387)
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SRI SERDANG SDN BHD (Company No. 197601000972 (26965-
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D)) PARADIZE BAZAAR SDN BHD (Company No. 199501039962
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VENICE HEIGHTS SDN. BHD. (Company No. 201401028069
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HANPOPULAR SDN. BHD. (Company No. 201401028022
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YANFULL INVESTMENTS LIMITED (Company No. 432136)
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YANFULL (SHANGHAI) CO. LTD. (Company No. 913100006072589999) ... PLAINTIFFS
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CHINA IDEA DEVELOPMENT LIMITED (Hong Kong Company No.: 1130588)
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PACIFIC VICTOR INTERNATIONAL LTD (Hong Kong Company No.: 890052)
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PERSONAL REPRESENTATIVES OF
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TEH WEI KIAN (NRIC No.: 960531-43-5109)
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TEH CHIAO EING, VALARIE (British Passport No.: GBR 548371510)
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WU KWOK YING, MARIA (British Passport No.: GBR 548181044)
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GOH SIN TIEN (NRIC No.: 500925-08-5335)
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HUANG GUOQUAN (PRC Passport No.: EB7450450)
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HUANG GUOYUAN (PRC Passport No.: E90189947)
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YONG CHOOI LAN (NRIC No.: 690802-10-5332)
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TAN SAY HAN (NRIC No.: 521023-08-5443)
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SHIU FAI FONG S/N Yvwtb2AFpk50KUgpFho0w (NRIC No.: 640422-12-5248)
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PERSONAL REPRESENTATIVES OF
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PERSONAL REPRESENTATIVES OF
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PERSONAL REPRESENTATIVES OF (CHINA WILL) ... DEFENDANTS GROUNDS OF JUDGMENT [1] Before the court is a complex commercial dispute involving allegations of fraud, conspiracy, and breach of fiduciary duties among several corporate entities and individuals spanning multiple jurisdictions including Malaysia, Hong Kong, British Virgin Islands, and mainland China. The case centres on the management and operation of overseas development projects, particularly in Shanghai, China, and involves claims of misappropriation of corporate funds through management agreements, artificial creation of debt, and improper allotment of shares [2] The key issues before the court include whether certain management agreements were legitimate business arrangements or shams designed to divert profits away from the plaintiff companies, whether loans and debts created between the parties were genuine, and whether the defendants breached their fiduciary duties to the S/N Yvwtb2AFpk50KUgpFho0w plaintiff companies. The dispute is further complicated by the death of one of the key figures allegedly involved in the scheme and subsequent actions by various parties claiming interests in the deceased's estate across multiple jurisdictions. [3] The facts of this case span over two decades of corporate history, involving a Malaysian-listed company and its subsidiaries operating development projects in China, including a residential development known as the Royal Garden Project and a water theme park. The claims involve intricate corporate structures, cross-border transactions, and contested management agreements that purportedly transferred economic benefits away from the plaintiff companies. BACKGROUND FACTS [4] Golden Plus Holdings Berhad (“Golden Plus”) is a public company incorporated under Malaysian law with approximately 4,200 shareholders and a paid-up capital of 146,850,675 shares. It has several subsidiaries including Golden Plus Construction Sdn Bhd (“GP Construction”), Golden Plus (BVI) Pte Ltd (“GP BVI”), Sri Serdang Sdn Bhd (“Sri Serdang”), Paradize Bazaar Sdn Bhd (“Paradize Bazaar”), Venice Heights Sdn Bhd (“Venice Heights”), and Hanpopular Sdn Bhd (“Hanpopular”). The group also includes Yanfull Investments Limited (“YIL”), a Hong Kong-incorporated S/N Yvwtb2AFpk50KUgpFho0w company, and Yanfull (Shanghai) Co. Ltd. (“YSL”), a company incorporated in the People's Republic of China (“PRC”). [5] Teh Soon Seng (“TSS”), who passed away on 23.3.2018, was a director of Golden Plus from 26.8.1994 until 16.1.2002. He was also appointed as Golden Plus's Corporate Representative for its investments in China over YSL, Shanghai Roxy Leisure Co. Ltd. (“Shanghai Roxy”), and Shanghai Golden Plus Quick Service Restaurant Co. Ltd. (“Shanghai QSR”) pursuant to a letter agreement dated 12.11.2002. TSS was further the director of several of Golden Plus's subsidiaries, including YIL and GP BVI. [6] On 25.7.2007, YIL entered into a Management Agreement (“Management Agreement”) with China Idea Development Limited (“CIDL”), a company incorporated in Hong Kong on 8.5.2007. Under this agreement, CIDL was to provide management and operation services for the Royal Garden Project (“RGP”), a development in Shanghai undertaken by YSL. In return, YIL was to pay CIDL a manager's fee of 4% of the development cost of the RGP. CIDL was granted extensive management rights, including the entitlement to operate all existing and future bank accounts of YSL and to receive direct payments for YSL. S/N Yvwtb2AFpk50KUgpFho0w [7] On 20.12.2012, an Addendum to the Management Agreement (“Addendum”) was executed by TSS and Goh Sin Tien (“ST Goh”), who were directors of YIL, and by Huang Guoquan (“Huang”) on behalf of CIDL. The Addendum stipulated that CIDL would take over all risks, benefits, and rewards of the RGP, although YSL would remain the legal owner of the development under PRC law. CIDL was to pay YIL a guaranteed return of RM650 per saleable square metre of residential units and commercial portions sold. The Management Agreement and the Addendum are referred together as the “CIDL Management Agreement”. [8] According to the Special Audit Report dated 3.1.2013 (“Special Audit Report”) by PricewaterhouseCoopers (“PwC”), CIDL completed Phase 2 of the RGP in June 2010, selling almost all units in 10 blocks of apartment buildings and generating more than RMB2.4 billion in sale proceeds. [9] On 17.5.2007, Golden Plus (as landlord) and Manfield International Limited (“Manfield”) (as tenant) entered into a lease agreement for a water theme park and restaurants in Shanghai that were previously operated by Shanghai Roxy and Shanghai QSR. On 30.1.2015, an Addendum and Extended Lease Agreement was executed between Golden Plus, Golden Century Entertainment Limited (“GCE”), Paradize Bazaar, and S/N Yvwtb2AFpk50KUgpFho0w Manfield. The lease agreements are referred together as the “Manfield Lease Agreements.” [10] On 18.10.2016, Golden Plus entered into a Facility Agreement with CIDL whereby CIDL granted a facility of USD1.5 million to Golden Plus (“Gplus Loan”). Golden Plus received the monies from CIDL in three portions: USD250,000 on 27.10.2016, USD950,000 on 28.10.2016, and USD300,000 on 30.11.2016. As security for this loan, Sri Serdang allowed CIDL to lodge lien holder's caveats on 23 titles of lands in Kajang. [11] On 28.2.2017, due to non-repayment of the loan, Golden Plus and CIDL entered into a Supplementary Agreement which entitled CIDL to lodge a Lien Holder's Caveat or Private Caveat over the properties as further security for the facility. [12] On 11.12.2017, CIDL and Sri Serdang entered into another Facility Agreement for USD1 million, of which CIDL purportedly advanced USD450,000 to Sri Serdang (“Sri Serdang Loan”). As security, CIDL lodged lien holder's caveats on a further 14 titles of lands in Kajang. [13] On 11.11.2017, a Deed of Trust (“Huang’s Deed of Trust”) was executed between Huang and TSS. According to an Affirmation Verifying the Schedule of Assets and Liabilities affirmed by the joint executrices of TSS’s Hong Kong Will on 6.5.2019, TSS owned S/N Yvwtb2AFpk50KUgpFho0w 19,499,995 shares of CIDL, which were held in the name of Huang as trustee for TSS. [14] TSS passed away on 23.3.2018, leaving behind four wills to deal with his assets in different jurisdictions: a Malaysian Will dated 6.11.2017, a UK Will dated 6.11.2017, a China Will dated 11.11.2017, and a Hong Kong Will dated 11.11.2017. [15] On 25.3.2019, GCE wrote to the board of Golden Plus requesting authorisation to terminate the Manfield Lease Agreements. The parties subsequently entered into a mutual termination agreement on 21.6.2019. [16] On 6.3.2020, members of Golden Plus voted to appoint three new directors and remove the entire previous board comprising, inter alia, Teh Wei Kian (“Andrew”) and Tan Say Han (“TSH”). The meeting and resolutions were challenged in court proceedings. [17] On 21.8.2020, Golden Plus's Board of Directors resolved to enter into a Settlement Agreement with CIDL and Eng Hup Tat (“Eng”), whereby Golden Plus would issue 46,196,995 new ordinary shares to Eng in consideration for Eng settling the debt of RM9,239,399 owing by Golden Plus to CIDL (“Settlement Agreement”). The Settlement Agreement was executed on 25.8.2020. S/N Yvwtb2AFpk50KUgpFho0w [18] On 26.8.2020, CIDL issued a letter to the board of directors of Golden Plus confirming receipt of the advance from Eng pursuant to the Settlement Agreement, and discharged Golden Plus from all liabilities under the Facility Agreement dated 18.10.2016 and the Supplemental Agreement dated 28.2.2017. On the same day, Golden Plus resolved to allot the shares to Eng, and the Return of Allotment was filed with the Companies Commission of Malaysia. [19] On 28.8.2020, the High Court, in Kuala Lumpur High Court Originating Summons WA-24NCC-153- 04/2019 (“OS 153”) and Kuala Lumpur High Court Originating Summons No. WA-24NCC-131-03/2019 (“OS 131”) (together, “Adjourned EGM Actions”), validated the resolutions passed at the general meeting of Golden Plus on 6.3.2020, effectively removing Andrew, TSH, and the rest of the previous board as of 6.3.2020, and replacing them with three new directors. [20] On 1.9.2020, Eng transferred the shares to Duwee Bao Kae (“Duwee”). On 8.9.2020, Duwee and Peng Weng Seng (“Peng”) requisitioned an EGM of Golden Plus to reconstitute the board by removing the three new directors and appointing themselves to the board. [21] On 9.9.2020, YIL wrote to CIDL informing them that the CIDL Management Agreement was null and void, and would be treated as if it was never entered into. S/N Yvwtb2AFpk50KUgpFho0w [22] On 18.9.2020, Pacific Victor International Ltd (“Pacific Victor”) issued a statutory demand to YIL for outstanding rent and interest accrued under Tenancy Agreements dated 25.5.2017 and 27.4.2018 (“Tenancy Agreements”). Wu Kwok Ying, Maria (“Maria”), the widow of TSS, is the sole shareholder and a director of Pacific Victor. [23] On 9.10.2020, Yong Chooi Lan, allegedly one of the mistresses of TSS, issued a statutory demand under the Insolvency Act of the BVI demanding the payment of USD3 million from GP BVI allegedly loaned by Yong Chooi Lan to GP BVI (“YCL Loan”) pursuant to an alleged Loan Agreement dated 15.3.2008 (“YCL Loan Agreeement”). [24] These events led to multiple legal actions, including the current suit filed by Golden Plus and its subsidiaries against CIDL, Pacific Victor, the personal representatives of TSS, and various individuals allegedly involved in the disputed transactions. [25] The trial lasted 33 days, during which 13 factual witnesses and 2 expert witnesses were called, and over 7,000 pages of documentary evidence were produced. The Defendants were represented by 7 separate sets of solicitors, each filing separate sets of pleadings, witness statements, bundles of documents, written submissions, reply submissions, and executive summaries. S/N Yvwtb2AFpk50KUgpFho0w [26] By the conclusion of the trial, the Notes of Proceedings exceeded 2,800 pages; the Bundles of Documents and marked exhibits spanned over 7,000 pages; the Witness Statements were cumulatively over 420 pages. [27] The Plaintiffs' Closing Submissions comprised 349 pages, supported by extensive Bundles of Authorities over 1,400 pages. 10 sets of written submissions were filed by the Defendants, accompanied by voluminous bundles of authorities. In total, the parties filed 1322 pages of written submissions. DRAMATIS PERSONAE [28] The following are individuals and entities involved in this case. [29] The Plaintiffs are: a) The 1st Plaintiff, Golden Plus Holdings Berhad (Golden Plus): A public company incorporated in Malaysia with approximately 4,200 shareholders. b) The 2nd Plaintiff, Golden Plus Construction Sdn Bhd (GP Construction): A wholly-owned subsidiary of Golden Plus incorporated in Malaysia. S/N Yvwtb2AFpk50KUgpFho0w c) The 3rd Plaintiff, Golden Plus (BVI) Pte Ltd (GPlus BVI): A private limited company incorporated in British Virgin Islands, wholly-owned by GP Construction. d) The 4th Plaintiff, Sri Serdang Sdn Bhd (Sri Serdang): A wholly-owned subsidiary of Golden Plus incorporated in Malaysia and owner of several land titles in Kajang. e) The 5th Plaintiff, Paradize Bazaar Sdn Bhd (Paradize Bazaar): A wholly-owned subsidiary of Golden Plus that was a party to the Manfield Lease Agreements concerning the Dino Beach Water Park, with ST Goh signing the Addendum on its behalf. f) The 6th Plaintiff, Venice Heights Sdn Bhd (Venice Heights): A wholly-owned subsidiary of Sri Serdang that owned several land titles which were allegedly given by the 12th Defendant, Shiu Fai Fong (“Fai Fong”) to Andrew and wrongfully converted to his use. g) The 7th Plaintiff, Hanpopular Sdn Bhd (Hanpopular): A wholly-owned subsidiary of Sri Serdang that, like Venice Heights, owned land titles that were allegedly misappropriated when Fai Fong gave them to Andrew. S/N Yvwtb2AFpk50KUgpFho0w h) The 8th Plaintiff, Yanfull Investments Limited (YIL): A private limited company incorporated in Hong Kong, subsidiary of GP BVI. i) The 9th Plaintiff, Yanfull (Shanghai) Co. Ltd (YSL): A private limited company incorporated in PRC, wholly-owned subsidiary of YIL, and the developer of the RGP. [30] The Defendants are: a) The 1st Defendant, China Idea Development
CIDL
(CIDL): A Hong Kong company incorporated on 8.5.2007, with a paid-up capital of HKD10, that entered into a Management Agreement dated 25.7.2007, and an Addendum dated 20.12.2012, with YIL. b) The 2nd Defendant, Pacific Victor International Ltd (Pacific Victor): A Hong Kong company owned by Maria, entered into Tenancy Agreements with YIL. c) The 3rd Defendant, Personal Representatives of TSS, Deceased (Malaysian Will) (“D3”): Representing of the estate of TSS under his Malaysian Will (with Fai Fong acting in the capacity of the representative). S/N Yvwtb2AFpk50KUgpFho0w d) The 4th Defendant, Teh Wei Kian (Andrew): Son of the late TSS and Yong Chooi Lan, appointed as a director of Golden Plus on 29.6.2019, and later as Legal and Corporate Representative of Golden Plus's foreign companies. e) The 5th Defendant, Teh Chiao Eing, Valarie (“Valarie”): Daughter of the late TSS and Maria, a British citizen and named executor of the Hong Kong Will. f) The 6th Defendant, Wu Kwok Ying, Maria (Maria): TSS’s wife, a British citizen, a shareholder of Golden Plus, sole director and shareholder of Pacific Victor, and named executor of the UK Will. g) The 7th Defendant, Goh Sin Tien (ST Goh): Former Chief Operating Officer of Golden Plus (Leisure Division) and a director in various Golden Plus subsidiaries. h) The 8th Defendant, Huang Guoquan (Huang): PRC citizen, director of CIDL, and legal representative/shareholder of Shanghai Qieru Trading Co. S/N Yvwtb2AFpk50KUgpFho0w i) The 9th Defendant, Huang Guoyuan (“GY Huang”): PRC citizen and director of CIDL. No appearance was entered by him. j) The 10th Defendant, Yong Chooi Lan: Mother of Andrew and allegedly one of TSS’s mistresses, a Malaysian citizen who entered into a loan agreement with GP BVI. k) The 11th Defendant, Tan Say Han (TSH): Appointed as director of Golden Plus on 9.5.2012, and later as an Executive Director on 21.6.2013. l) The 12th Defendant, Shiu Fai Fong (Fai Fong): General Manager of Finance at Golden Plus since 1997, initially as General Manager: Finance (Sabah Operations). m) The 13th Defendant, Personal Representatives of TSS, Deceased (United Kingdom Will) (“D13”): Representing the estate of TSS under his UK Will (with Maria as the named executor). n) The 14th Defendant, Personal Representatives of TSS, Deceased (Hong Kong Will) (“D14”): Representing the estate of TSS under his Hong Kong Will (with Valarie as representative). S/N Yvwtb2AFpk50KUgpFho0w o) The 15th Defendant, Personal Representatives of TSS, Deceased (China Will) (“D15”): Representing the estate of TSS under his China Will with Lee Swee Hock (“Michael Lee”) acting in the capacity of representative. [31] Other key individuals and entities are: a) Teh Soon Seng (TSS): A successful businessman who passed away on 23.3.2018, leaving multiple wills (Malaysian, UK, China, and Hong Kong Wills). He was formerly the chairman of Golden Plus, director of several subsidiaries, and the Corporate Representative of Golden Plus's investments in China. b) Golden Century Entertainment Ltd (GCE): A Hong Kong subsidiary of Golden Plus. c) Shanghai Roxy Leisure Co. Ltd (Shanghai Roxy): A PRC subsidiary of Golden Plus that operated the Dino Beach Water Park. d) Shanghai Golden Plus Quick Service Restaurant Co. Ltd (Shanghai QSR): A PRC subsidiary of Golden Plus that operated restaurants at the Dino Beach Water Park. S/N Yvwtb2AFpk50KUgpFho0w e) Manfield International Limited (Manfield): A company that entered into Manfield Lease Agreements with Golden Plus, GCE, and Paradize Bazaar for the Dino Beach Water Park and restaurants. f) Li Lin: Director of Manfield and one of TSS’s mistresses. g) Heng Fat Trading Company (“Heng Fat”): A consortium of contractors, suppliers, and financiers who had entered into a Co-operation Agreement with YIL dated 17.11.2000 (“Co-operation Agreement”), for the development of Phase 1 of the RGP. h) Shanghai Qieru Trading Co (Shanghai Qieru).: Nominee of CIDL in China that received payments from YSL. i) Shanghai Fendian Investment Management Co.: Nominee of CIDL in China. j) Teo Han Tong: TSS’s father. k) Teo Sung Ngiap (“Jason Teo”): TSS’s younger brother and Andrew's uncle, appointed to replace TSS as the Legal and Corporate S/N Yvwtb2AFpk50KUgpFho0w Representative of Golden Plus's investments in China after TSS’s death. l) Dato’ Seri Krishna Kumar (“Krish Kumar”): Advocate and solicitor from Messrs Krish Maniam & Co., who served as former legal counsel for Golden Plus and was involved in drafting crucial agreements and providing legal advice related to the matters in dispute. He is referred to as “Botak” in WhatsApp messages between ST Goh, TSH and Andrew although it is unclear if this is a nickname used in direct conversation. m) Gary Kuo Yin Ho (“Gary Kuo”): A close friend, confidante, business advisor, and right-hand man of TSS, co-executor of the Hong Kong Will and Head of Finance of YSL. n) Eng Hup Tat (Eng): Individual who allegedly settled Golden Plus's debt to CIDL in exchange for the issuance and allotment of 46,196,995 shares in Golden Plus. o) Duwee Bao Kae (Duwee): Andrew's alleged nominee who purchased 46,196,995 shares in Golden Plus from Eng. S/N Yvwtb2AFpk50KUgpFho0w p) Peng Weng Seng (Peng): An individual who, together with Duwee, requisitioned an Extraordinary General Meeting (“EGM”) of Golden Plus. q) Rosa Bianca Investments Limited (“Rosa Bianca”): A BVI company that held blocks of Golden Plus shares, allegedly part of TSS’s assets. r) Classico Enterprises Limited (“Classico”): A BVI company subject to ownership dispute in Kuala Lumpur High Court Suit No. WA-22NCC-443- 08/201 (“Suit 443”) and Kuala Lumpur High Court Suit No. WA-22NCC-560-10/2019 (“Suit 560”). s) Wong Koon Wai: Director of the 1st Plaintiff (from March 2020) who gave evidence at the trial as PW1 on the Tenancy Agreements between YIL and Pacific Victor, rental payments, the filing of the suit and subsequent investigations, legal fees incurred, other potential losses, and attempts to wind up Golden Plus. t) Yang Li Ru: Assisted in the preparation of Financial Statements and audit for YSL and S/N Yvwtb2AFpk50KUgpFho0w gave evidence as PW2 regarding the RGP and her role in financial matters for YSL. u) Xu Jie: Bank General Manager who gave evidence as PW3 relating to loans to RGP. v) Zhao Li Sheng: Deputy Chairman of YSL who gave evidence as PW4 concerning the RGP, including CIDL's alleged non-involvement and a YSL board meeting. w) Wong Wing Hoi (“Martin Wong”) is a barrister practicing in Hong Kong who gave expert evidence on Hong Kong law concerning breaches of fiduciary duties, trust, and contract, x) Sajjad A. Akhtar (“Sajjad Akhtar”): Financial expert who gave expert evidence on the involvement of CIDL and Heng Fat in the RGP, the financial impact of the alleged fraud, and the quantification of damages. y) Lee Swee Hock (Michael Lee): Golden Plus’s General Manager of construction and Project Manager of YSL who gave evidence as DW5 about a YSL board meeting on 20.6.2013, confirming there was no assistance from CIDL regarding the RGP when shown the minutes. He is also the 15th Defendant (D15), the Personal S/N Yvwtb2AFpk50KUgpFho0w Representative of the Estate of TSS Deceased (China Will). z) Mercia Grace Simbaku: Former Senior Adminstrative Executive of Golden Plus who gave evidence as DW4 in relation to the return of 58 Titles to the Kajang Office, confirming their return by Andrew. PLAINTIFF’S CASE [32] The Plaintiffs' case, as pleaded in the Re-Amended Statement of Claim (“SOC”), alleges a two-decade conspiracy to defraud the Gplus Group spanning multiple jurisdictions. The conspiracy is alleged to have involved a series of unlawful acts perpetrated by the Defendants with the common purpose of siphoning money from the Gplus Group and preserving the proceeds of fraud in the estate of TSS. CIDL (1st Defendant) and Huang (8th Defendant) [33] The Plaintiffs allege that CIDL entered into the Management Agreement and Addendum with YIL which were procured by fraud and breach of fiduciary duties. The Plaintiffs contend that CIDL was at all material times beneficially owned by TSS, and that CIDL provided no actual management services for the RGP despite receiving substantial payments calculated at 4% of the S/N Yvwtb2AFpk50KUgpFho0w development cost. The Plaintiffs further allege that Huang, as a director of CIDL, participated in this fraudulent scheme by facilitating the siphoning of funds from YSL and YIL to CIDL. Additionally, the Plaintiffs claim that the Facility Agreement dated 18.10.2016 and Supplemental Agreement dated 28.2.2017 between CIDL and Golden Plus for the USD1.5 million GPlus Loan, and the Facility Agreement dated 11.12.2017 between CIDL and Sri Serdang for the USD1 million Sri Serdang Loan, were artificial debts created to enable CIDL to seize control of valuable land titles through lien holder's caveats. The Plaintiffs assert that these loans were designed with onerous terms to ensure default, and that the purported loan proceeds were in fact monies previously diverted from the Gplus Group to CIDL under the sham CIDL Management Agreement. Pacific Victor (2nd Defendant), Valarie (5th Defendant), Maria (6th Defendant), D13, D14 (Personal Representatives of TSS - UK and HK Wills) (13th and 14th Defendants) [34] The Plaintiffs allege that Pacific Victor, a company owned by Maria, entered into sham Tenancy Agreements with YIL dated 25.5.2017 and 27.4.2018 for Flat B, 31st Floor, The Mayfair, 1 May Road, Mid-level, Hong Kong (“Mayfair Flat”) at a monthly rent of HKD100,000. The Plaintiffs contend that possession of the premises was never delivered to YIL, as the flat was at all material times used and occupied by Maria and Valarie as their own S/N Yvwtb2AFpk50KUgpFho0w residence, resulting in total failure of consideration. The Plaintiffs assert that TSS failed to disclose his interest in Pacific Victor to the board of YIL and Golden Plus, and that these arrangements constituted a mechanism to divert approximately HKD10.2 million from the Gplus Group. Following TSS's death on 23.3.2018, Maria weaponised this artificial debt by issuing a statutory demand on 18.9.2020, precisely nine days after the termination of the CIDL Management Agreement on 9.9.2020. The Plaintiffs further allege that Valarie, Maria, Andrew, and TSH conspired to cause the fraudulent issuance and allotment of 46,196,995 shares in Golden Plus to Eng through the sham Settlement Agreement, designed to dilute the majority faction's shareholding from 28.81% to 21.92% and create an artificial single-block majority of 23.93% to maintain control of Golden Plus. Andrew (4th Defendant), Yong Chooi Lan (10th Defendant) [35] The Plaintiffs allege that Andrew, as the son of TSS and Yong Chooi Lan, was surreptitiously appointed as a director of Golden Plus on 29.6.2019 following the termination of the Manfield Lease Agreements in June 2019, which threatened the flow of funds to beneficiaries of TSS's estate. The Plaintiffs contend that Andrew conspired with other Defendants to enable Andrew, Valarie, TSH and their nominees to take control of Golden Plus and its subsidiaries to preserve the proceeds of fraud. The Plaintiffs specifically allege that Andrew S/N Yvwtb2AFpk50KUgpFho0w financed litigation against Golden Plus for collateral purposes and participated in attempts to take possession of and convert 23 land titles belonging to Sri Serdang. The Plaintiffs further allege that Andrew, TSH, Fai Fong, CIDL and Huang conspired to take possession of and/or convert these 23 issue documents of title. Against Yong Chooi Lan, the Plaintiffs allege that the YCL Loan Agreement between her and GP BVI for USD3 million was an artificial debt, as she was not a person of means who could have advanced such funds. The Plaintiffs contend that this artificial debt was later weaponised when Yong Chooi Lan issued a statutory demand on 9.10.2020 under the Insolvency Act of the BVI demanding payment, as part of the conspiracy to either maintain control of the Gplus Group or, failing that, to destroy its corporate structure through winding-up proceedings. ST Goh (7th Defendant) [36] The Plaintiffs allege that ST Goh, as former Chief Operating Officer of Golden Plus (Leisure Division) and a director of various Golden Plus subsidiaries, participated in the conspiracy to defraud by executing fraudulent agreements without proper disclosure. Specifically, the Plaintiffs contend that ST Goh was a participant in the scheme to siphon monies from the Dino Beach Water Park through the Manfield Lease Agreements dated 17.5.2007 and 30.1.2015, alongside TSS and Li Lin. The Plaintiffs allege that ST Goh failed to disclose TSS's S/N Yvwtb2AFpk50KUgpFho0w interest in these agreements and that Manfield did not actually participate in the development, operation and business of the Dino Beach Water Park, which was at all material times operated by Shanghai Roxy and Shanghai QSR. The Plaintiffs further allege that ST Goh signed the Management Agreement and its Addendum on behalf of YIL despite TSS's undisclosed interest in CIDL, thereby breaching his fiduciary duties to the Gplus Group. The Plaintiffs assert that ST Goh, together with TSS, Andrew, Valarie, Maria, TSH, Yong Chooi Lan, and others, conspired to perpetuate fraud on the Gplus Group by continuing to siphon out proceeds from the RGP through TSH (11th Defendant) [37] The Plaintiffs allege that TSH, who was appointed as director of Golden Plus on 9.5.2012 and later as Executive Director on 21.6.2013, participated in the conspiracy to perpetuate fraud on the Gplus Group. The Plaintiffs contend that TSH orchestrated the fraudulent share allotment to Eng in August 2020 and was responsible for facilitating artificial debts through the GPlus and Sri Serdang loans. The Plaintiffs further allege that TSH failed to conduct proper due diligence on the CIDL Management Agreement and the Manfield Lease Agreements despite red flags regarding TSS's undisclosed interests, thereby breaching his fiduciary duties as a director with financial oversight S/N Yvwtb2AFpk50KUgpFho0w responsibilities. The Plaintiffs assert that TSH, together with Andrew, Valarie, Maria, ST Goh, Yong Chooi Lan, Pacific Victor, CIDL, Huang, and Fai Fong, conspired to enable Andrew, Valarie, TSH and their nominees to take control of Golden Plus and its subsidiaries following the termination of the Manfield Lease Agreements in June 2019, which posed a direct threat to the continuation of fraudulent schemes that had been operating during TSS's lifetime. D3 (Personal Representatives of TSS, Deceased (Malaysian Will) (3rd Defendant) [38] Against D3, Fai Fong as the Personal Representatives of TSS's Malaysian estate, the Plaintiffs pursue recovery of the proceeds of fraud obtained through the various alleged fraudulent schemes orchestrated by TSS during his lifetime, including the CIDL Management Agreement, the Manfield Lease Agreements, and the Pacific Victor Tenancy Agreements. The Plaintiffs contend that TSS, as a director of YIL and Golden Plus subsidiaries, breached his fiduciary duties by failing to disclose his interests in CIDL, Manfield, and Pacific Victor, and by orchestrating a systematic scheme to siphon funds from the Gplus Group over a period spanning two decades. S/N Yvwtb2AFpk50KUgpFho0w Fai Fong (12th Defendant) [39] The Plaintiffs allege that Fai Fong, as General Manager of Finance at Golden Plus since 1997, participated in the conspiracy by providing confidential company information to facilitate the fraudulent share allotment scheme. Specifically, the Plaintiffs contend that Fai Fong prepared charts calculating shareholder spreads for Andrew and TSH despite knowing they had been removed as directors, demonstrating her awareness of and participation in the conspiracy. The Plaintiffs further allege that Fai Fong gave possession of 58 land titles belonging to Sri Serdang, Venice Heights and Hanpopular to Andrew on 14.8.2020, who has wrongfully withheld these titles. The Plaintiffs assert that Fai Fong, Andrew, and TSH caused Sri Serdang to acknowledge a purported outstanding debt of RM2,503,315.80 to CIDL as at 26.7.2020, which was not a legitimate debt. D15 (Personal Representatives of TSS, Deceased (China Will) (15th Defendant) [40] Against D15, as the Personal Representatives of TSS under the China Will, the Plaintiffs seek recovery of the proceeds of fraud obtained through the various schemes perpetrated by TSS during his lifetime, particularly in relation to the CIDL Management Agreement and payments engineered to Heng Fat nominees for which no services were rendered. The Plaintiffs contend that TSS's S/N Yvwtb2AFpk50KUgpFho0w estate continues to benefit from these fraudulent arrangements and that TSS's 2017 Hong Kong Will explicitly bequeathed CIDL's receivables to Maria, Andrew and others, demonstrating that the estate retains assets traceable to the fraud. RELIEFS SOUGHT BY THE PLAINTIFFS [41] The relief sought by the Plaintiffs in this action are comprehensively set out in paragraph 70 of the SOC as amended. These reliefs can be categorically divided into two broad areas, each serving distinct but complementary objectives in addressing the extensive fraud and conspiracy perpetrated against the Plaintiffs. First Category: Declarations and Permanent Injunctions [42] The first area encompasses various declarations and permanent injunctions, designed specifically to unravel the alleged fraud that has been perpetrated and to prevent any further injury to the Plaintiffs, namely Golden Plus and its subsidiaries. Declarations Sought [43] The Plaintiffs seek a declaration that the CIDL Management Agreement and the Addendum were procured by fraud, breach of trust, breach of fiduciary S/N Yvwtb2AFpk50KUgpFho0w duties, and breach of contract, and are thereby null and void, not binding and unenforceable (prayer 70(i)). [44] Complementing this, the Plaintiffs seek a declaration that all acts purportedly exercised by TSS and the 7th to 9th Defendants (ST Goh, Huang and GY Huang) pursuant to the CIDL Management Agreement and the Addendum are null and void and of no effect (prayer 70(ii)). [45] The Plaintiffs further seek specific declarations regarding the YCL Loan Agreement, seeking to declare it as null and void and establishing that she did not advance USD 3 million to and/or on behalf of Golden Plus and/or GP BVI (prayers 70(iii) and (iv)). Permanent Injunctions [46] Prayer 70(v) seeks permanent injunctions restraining the Defendants or any one or more of them from commencing or proceeding with winding-up actions or any attempt to appoint liquidators or receivers over Golden Plus and its subsidiaries, or placing any reliance on alleged loans and/or advances. [47] Prayer 70(vii) seeks to restrain Andrew from seeking to act upon or recover monies allegedly owing to him. S/N Yvwtb2AFpk50KUgpFho0w Second Category: Compensatory Relief [48] The second area of relief addresses the core objective of ensuring that the Plaintiffs are properly compensated for the loss and damage they have been subjected to by reason of breach of fiduciary duty, breach of trust, breach of contract, fraud and conspiracy to defraud, if proven. Account and Inquiry [49] In prayer 70(x), the Plaintiffs seek an account and inquiry against the Defendants and each of them for restitution of property and/or payments of monies found to be due and/or profits earned by reason of being in receipt of such property and/or monies. This account is sought as a post-judgment relief, requiring each and every one of the Defendants, if found liable on a joint and several basis, to provide a comprehensive account of any properties or ill-gotten monies or illegal profits made as a result of their alleged unlawful acts. Special Damages [50] Prayer 70(xi) seeks special damages in the amount of RMB166,103,428.00. In the event this court grants judgment in favour of the Plaintiffs, the Defendants would be made jointly and severally liable for these special damages, consistent with the legal position on joint and S/N Yvwtb2AFpk50KUgpFho0w several liability under the tort of conspiracy where the damage is indivisible. Asset Tracing and Recovery [51] The declarations and orders sought in prayers 70(xii) and
XIII
(xiii) relate specifically to the tracing of the assets of TSS to discharge the indebtedness of the estate of TSS to the Plaintiffs, and for any such assets to be decreed as belonging to the Plaintiffs. These prayers seek orders to at least the value of RMB166,103,428.00, being the special damages sought, ensuring that the assets follow the money trail of the alleged fraudulent scheme. Exemplary Damages [52] Finally, the Plaintiffs seek exemplary damages against the Defendants on account of their alleged egregious conduct. Joint and Several Liability [53] The Plaintiffs seek joint and several liability against all Defendants who participated in the alleged conspiracy. WITNESSES [54] Six witnesses appeared for the Plaintiffs as follows: S/N Yvwtb2AFpk50KUgpFho0w a) PW1 is Wong Koon Wai, a director of Golden Plus (from March 2020). His evidence centres on his discovery of fraud pertaining to Golden Plus and its subsidiaries. He testified about the tenancy agreements between YIL and Pacific Victor, rental payments, the filing of the suit and subsequent investigations, legal fees incurred, other potential losses, and attempts to wind up Golden Plus. Although PW1 lacked direct personal knowledge of certain historical events, his testimony was based on contemporaneous documentary evidence, including board minutes and forensic audit findings. His evidence focused on the documentary trail left behind by the alleged fraudulent scheme rather than claiming personal knowledge of all events spanning the alleged two-decade conspiracy. b) PW2 is Yang Li Ru, an accountant who has handled YSL's accounts since 1999 and was promoted to Finance Manager of YSL towards the end of 2016. She assisted in the preparation of Financial Statements and audit for YSL, and handled cash receipts and payments. Her evidence was regarding the RGP's financial operations, as she occasionally assisted in the payment process to contractors and suppliers. For Phase 2 of the RGP, she dealt with bankers who financed the development and liaised with S/N Yvwtb2AFpk50KUgpFho0w various departments within YSL for payments to third parties. She testified that CIDL did not exclusively operate any bank accounts of YSL, did not receive and direct any payments for YSL, was not involved with YSL's accounts, and did not maintain the books, ledgers, financial and other records of YSL, which were all maintained by YSL itself. c) PW3 is Xu Jie, who served as General Manager of the Second Customer Department of the Agricultural Bank of China from January 2005 until he left the bank in 2016. The Agricultural Bank of China was one of the primary financiers for Phase 2 of the RGP. His evidence related to YSL's loan applications and management for RMB420 million obtained in 2006 and 2007. He and his colleague personally handled YSL's loan application, approval, disbursement and repayment of the principal amounts. He initially dealt with Jason Teo for the loan application, and subsequently with YSL's Finance Department officers, Yang Li Ru and Gary Kuo, regarding disbursement and loan management. He testified that he was not familiar with CIDL and had never heard of the company, and did not know any individuals from CIDL including Huang or GY Huang. S/N Yvwtb2AFpk50KUgpFho0w d) PW4 is Zhao Li Sheng, who joined YSL as Manager of the Business Development Department in 1996 and was appointed Deputy Chairman of YSL in October 2000, serving until April 2018. His evidence was regarding the development and management of the RGP. He was responsible for liaising with all relevant government departments to procure permits and approvals required for all phases of the RGP. His scope of duties included securing extensions of development rights from 2005 to 2008 and further extensions from 2013 to 2017. He testified that CIDL had no involvement whatsoever in obtaining the necessary approvals, permits, permissions, or development right extensions for the RGP. All such applications were applied for and obtained by his department. He confirmed that he was never employed by CIDL and only knew of CIDL from what TSS had informed him. e) Martin Wong is a barrister practicing in Hong Kong who was called as an expert witness on Hong Kong law. His scope of expert evidence concerned the validity of the CIDL Management Agreement and Addendum, assuming that TSS had an undisclosed interest in CIDL at the time of execution. He was instructed to provide opinions on whether the agreements are void or S/N Yvwtb2AFpk50KUgpFho0w voidable under Hong Kong's Companies Ordinance and YIL's Articles of Association, and what remedies would be available. He opined that the Management Agreement and Addendum are void due to TSS's failure to disclose his interest in CIDL, which breached Article 27 of YIL's Articles of Association and Section 162(1) of the Hong Kong Companies Ordinance. He concluded that the board resolutions authorising the agreements were inquorate, that TSS's vote would not count, and therefore the agreements have no binding effect on YIL. He further concluded the agreements are voidable on account of TSS's breach of fiduciary duties, and that YIL is entitled to rescind the agreements and pursue remedies including proprietary claims, unjust enrichment claims, and potential damages for fraud. f) Sajjad A. Akhtar is a Director of PKF-CAP Advisory Partners Pte Ltd and Head of Financial Advisory Services at PKF-CAP, and a Chartered Accountant of Singapore. He testified as an independent financial expert witness for the Plaintiffs. He was engaged to render an expert opinion on the non-involvement of CIDL and Heng Fat in the RGP, as well as the financial impact and special damages on the Plaintiffs. He prepared an Independent Expert Report S/N Yvwtb2AFpk50KUgpFho0w dated 13.2.2023 and a Supplementary Expert Report and Errata dated 15.5.2023 based on his visit to the RGP in Shanghai, China. His evidence centred on Proforma Financial Statements prepared on the assumption that the Cooperation Agreement with Heng Fat and the Management Agreement with CIDL were void ab initio. His findings showed that retained earnings were understated by RM52.55 million at 31.12.2010 and RM102.03 million at 31.12.2020, while cash and bank balances were understated by RM92.86 million and RM102.03 million respectively at those dates. [55] Eight witnesses appeared for the Defendants as follows: a) DW1 is TSH (Tan Say Han) the 11th Defendant. His evidence centres on defending against the Plaintiffs' allegations of fraud and breach of fiduciary duties. He testified that he was a director of Golden Plus from 9.5.2012 and later executive director from 20.6.2013 until 6.3.2020, and director of GP Construction from 26.8.2019 until 12.10.2020. He maintained that the CIDL Management Agreement was entered into for proper purposes to overcome difficulties faced by the GPLUS Group, including alleged financial losses, risk of land confiscation, employment issues, and fund repatriation restrictions. He S/N Yvwtb2AFpk50KUgpFho0w testified that through CIDL, loans were obtained from various Chinese banks as it was impossible for YSL to obtain loans directly, though he later admitted under cross-examination that this testimony was false and the misinformation was provided by TSS. He claimed that without CIDL's assistance to resolve issues with Heng Fat, Phase 2 of the RGP could not have proceeded. He testified about his appointment to the board shortly after Golden Plus requested amendments to the Addendum, and his subsequent role in approving the unamended Addendum after ST Goh's resignation. He denied all allegations of fraud, conspiracy, or breach of fiduciary duties, maintaining that his efforts were to ensure no further embezzlements were carried out against Golden Plus and its subsidiaries. b) DW2 is Maria (Wu Kwok Ying, Maria) the 6th Defendant, a British citizen. She is the widow of the late TSS and the sole shareholder and director of Pacific Victor. Her evidence denied all allegations against her. She testified that after TSS's demise, disputes arose between TSS's siblings and TSS's son, Andrew, regarding the ownership of shares in Golden Plus, and that the dispute was ongoing. As trustee for Valarie under the late TSS's wills, she stated that she S/N Yvwtb2AFpk50KUgpFho0w had a duty to protect Valarie's interest in Golden Plus which was aligned with Andrew's interest. She testified that all the actions she had taken since were based on legal advice, and that there was no fraud or conspiracy to injure. She maintained that actions were taken by both factions to protect and further their respective interests which are usual in any estate and shareholder dispute. She contended that the rest of the allegations by the GPlus Group against the other Defendants were unrelated and/or unconnected to the late TSS, Pacific Victor, Valarie and/or herself. She denied that there was any loss whatsoever suffered by the GPlus Group, or if any, it was not due to any acts of theirs. c) DW3 is TS Goh (Goh Sin Tien) who testified on his own behalf as the 7th Defendant. His evidence was a comprehensive denial of all allegations against him. He stated that he denied all of the Plaintiffs' allegations against him, asserting that these allegations were not founded on facts. He maintained that the Plaintiffs' claims were unsustainable and denied that the Plaintiffs were entitled to any damages or costs against him. S/N Yvwtb2AFpk50KUgpFho0w d) DW4 is Mercia Grace Simbaku, currently unemployed. She stated that since 1993, she had worked in Kota Kinabalu in several companies as a secretary/clerk. In April 2004, she received an offer to work for Sepang Goldcoast Sdn Bhd and relocated to West Malaysia, resigning in August 2010. She then worked with Asia World Resorts Sdn Bhd as an Office Administration Assistant. In August 2019, she was employed as a Senior Administrative Executive by Golden Plus until December 2020. She testified that she came to be employed at Golden Plus when Asia World Resorts decided to move their office to Kota Kinabalu around August 2019, and Fai Fong, who was the General Manager – Finance of Golden Plus at that time, asked her if she wanted to join Golden Plus and work in the Kajang Office of Sri Serdang. Regarding the 58 land titles, she testified that she was contacted by the police in Kajang to get her statement regarding a police report made by the new director of Sri Serdang, Mr Low, that the 58 Titles were missing. She stated this was the first time she became aware that a police report was made against her. She informed the police that she had kept the 58 Titles in the locked cabinet on 20.8.2020 and had no knowledge of what happened to the 58 S/N Yvwtb2AFpk50KUgpFho0w Titles after that. She testified that she had not been contacted by the police after that. e) DW5 is Michael Lee, who was appointed by Golden Plus as the General Manager of Construction in 1996 and heads the planning and construction department in YSL. He was also the first Legal Representative of YSL from 1994 to 2000, and thereafter remained a director/Deputy Chairman of YSL. His evidence centres on his role as the person responsible for all aspects of planning and construction of the RGP. He testified that he had a team of between 40 to 60 staff at YSL over the different phases of the RGP, comprising divisions including Office Administration, Material Team, Contract/Payment/Engineering Data/Project Progress Report, Cost Control, Project Management, and Design Team. His evidence was unequivocal that he had not witnessed or seen any physical presence of CIDL's personnel or officers in the day-to-day running of the RGP. He testified that while he was aware of the CIDL Management Agreement, CIDL was never involved in the Project, stating that in all the time he acted as Project Manager for all phases of the RGP, CIDL never managed nor controlled the business of YSL relating to the development of the RGP, did not engage any skilled or S/N Yvwtb2AFpk50KUgpFho0w unskilled labour, independent contractor, consultant, and agents for the effective running of YSL, and was neither the lead participant nor did they manage the construction and maintenance of the RGP. He also testified that he was never employed by CIDL nor has CIDL ever paid him a salary. f) DW6 is Yong Chooi Lan, the 10th Defendant. Her evidence relates to a loan agreement between herself and Golden Plus/GP BVI. She testified about her background, stating that after completing her Form 3 education around age 17, she worked as a receptionist in a restaurant. She later worked in a karaoke business in Kota Kinabalu, Sabah for a few months to support her family, and it was during this period around 1990/1991 that she first met TSS, whom she describes as her husband. She testified that they got together in 1992 and that TSS would often give her money and financially supported her since then. Her evidence centres on the YCL Loan Agreement and her contention that the debt owed by GP BVI to her is a genuine debt. She denies the Plaintiffs' allegations that the debt is an artificial creation and that she conspired to defraud or acted fraudulently to take control of the Plaintiffs by seeking to wind up Golden Plus. She maintains that for the S/N Yvwtb2AFpk50KUgpFho0w reasons she explained in her testimony, the loan to Golden Plus and the debt owed by GP BVI is a genuine debt owed to her. g) DW7 is Andrew (Teh Wei Kian) the 4th Defendant. He recently graduated with a Masters in International Business Management with Marketing from Heriot-Watt University in June 2022, having previously studied Civil Engineering at Warwick University where he graduated with honours in 2019. He testified on his own behalf as the 4th Defendant. He was formerly a director of Golden Plus from 29.6.2019 until his removal on 28.8.2020, and was also formerly a director in various Golden Plus subsidiaries including GP Construction from 26.8.2019 to 12.10.2020. His evidence disputes the Plaintiffs' allegations of fraud and conspiracy, maintaining that his actions were legitimate business decisions made in his capacity as director. He testified that he organised legal services and representation for CIDL and Huang in Malaysia following TSS's demise, and defended his involvement in various transactions including the fraudulent allotment of shares and the Joint Venture Plan with MKH Berhad as proper corporate actions. S/N Yvwtb2AFpk50KUgpFho0w h) DW8 is Fai Fong (Shiu Fai Fong) who was the General Manager of Finance at Golden Plus and testified on her own behalf as the 12th Defendant in her individual capacity and was also authorised to give evidence on behalf of the 3rd Defendant as Personal Representative of TSS, Deceased (Malaysian Will). She was first employed by Golden Plus in 1997 as General Manager of Finance (Sabah Operations) and became in charge of Golden Plus's Malaysian companies' finances since November 2013 until the termination of her employment on 22.2.2021. Her evidence disputes the Plaintiffs' allegations of fraud and conspiracy, maintaining that she was merely following directors' instructions and was not involved in decision-making or management decisions within Golden Plus. She testified that she had no involvement in causing acknowledgment of outstanding debts to CIDL and that she prepared statements and documents in good faith on instructions from her superiors. She denied perpetrating fraud against the GPlus Group and contended that she acted within the scope of her role as General Manager of Finance. S/N Yvwtb2AFpk50KUgpFho0w ANALYSIS AND FINDINGS CIDL (1st Defendant) and Huang (8th Defendant) [56] From the facts of the case, defences relied on by CIDL and Huang and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether CIDL performed its obligations under the CIDL Management Agreement to justify the management fees and profit entitlements totaling RMB114,102,428.00 paid to it. b) Whether TSS beneficially owned CIDL from its inception rather than only acquiring ownership through Huang’s Deed of Trust. c) Whether the Gplus Loan and Sri Serdang Loan were legitimate financial transactions or artificial debts created as part of a fraudulent scheme to enable CIDL to seize control of valuable assets belonging to the Gplus Group. d) Whether the Plaintiffs are entitled to general damages for the costs incurred in replacing the lost title documents as a result of CIDL and Huang's conduct in relation to the title deeds. S/N Yvwtb2AFpk50KUgpFho0w e) Whether Huang's Statutory Declarations executed on 31.12.2021 and 4.1.2022 were admissible and reliable evidence that could be used to assess his credibility, or were procured under duress. f) Whether the expert evidence provided by Martin Wong and Sajjad Akhtar was admissible, relevant, and helpful to the court's determination of the issues in the case. g) Whether this suit should be characterised as merely an internal corporate dispute between members and directors of the Plaintiff companies or as a substantive fraud and conspiracy claim against CIDL and Huang. [57] Below is my analysis based on the issues above. Non-Performance of the Management Agreement by CIDL [58] The Plaintiffs contend that CIDL did not perform any services or undertake any work for the RGP, which was at all material times managed and developed by YSL. They assert that there was no consideration for the payment of RMB69,102,428.00 in management fees and RMB45,000,000.00 in profit entitlements to CIDL and/or its nominees under the CIDL Management Agreement. The Plaintiffs have produced voluminous project S/N Yvwtb2AFpk50KUgpFho0w documents, including loan agreements, approvals and permits for the construction of the RGP, and called several witnesses with direct knowledge of the management and development of the project. PW2 Yang Li Ru, PW3 Xu Jie, PW4 Zhao Li Sheng, and DW5 Michael Lee, who were all employees of YSL (save for PW3), testified extensively about their roles in the RGP and confirmed CIDL's non-involvement. The Plaintiffs further argue that CIDL's reliance on the mere fact of payments as proof of performance is circular reasoning, as these payments represent the very proceeds of fraudulent conduct. [59] CIDL and Huang deny the Plaintiffs' allegations and maintain that the CIDL Management Agreement was legitimately entered into for due and valid consideration. They assert that CIDL duly discharged its duties as project manager, completing the 2nd and 3rd phases of the RGP by July 2020. The Defendants claim that Huang worked with Heng Fat during Phase 1 of the RGP, where he was a necessary liaison with government authorities in procuring relevant permits for Phase 2. They further contend that payments totalling RMB114,102,428.00 were made to several Chinese companies for work done by CIDL and Huang under the CIDL Management Agreement. The Defendants attribute their inability to produce documentary evidence of their performance to the fact that such documents were kept in the “offices of S/N Yvwtb2AFpk50KUgpFho0w the Plaintiffs” located within the RGP, which are now inaccessible to them. [60] Upon careful consideration of the evidence and submissions, I find that the Plaintiffs have established on a balance of probabilities that CIDL did not perform its obligations under the CIDL Management Agreement. The chronology of events is particularly telling. CIDL was incorporated on 8.5.2007 with a nominal paid-up capital of HKD10, merely 11 weeks before entering into the Management Agreement on 25.7.2007. This timing and minimal capitalisation are inconsistent with a company genuinely established to manage a development project worth hundreds of millions of dollars. Furthermore, the evidence reveals that the permit to commence the development of Phase 2 of the RGP was granted on 10.5.2005, more than two years before the Management Agreement was executed. This timeline contradicts the assertion that CIDL was necessary for procuring permits for Phase 2. [61] The testimony of Huang himself undermines the Defendants' position. Under cross-examination, Huang admitted that he carried out a printing business in Guangdong until 2005, when he closed that business and moved to Shanghai to engage in the construction material business. This was the first time Huang was based in Shanghai. However, Heng Fat had ceased to exist in 2001, some four years before Huang moved to Shanghai, S/N Yvwtb2AFpk50KUgpFho0w and Phase 1 of the RGP was completed in February 2004, a year prior to Huang's relocation. It is therefore chronologically impossible for Huang to have worked with Heng Fat during Phase 1 of the RGP as claimed. Huang further admitted that upon moving to Shanghai, he had no expertise in property development, rendering it inherently improbable that he procured the relevant permits for Phase 2. [62] Most significantly, despite having substantial obligations under the CIDL Management Agreement, CIDL and Huang failed to produce a single document evidencing any work performed for the RGP. When questioned about this failure during cross-examination, Huang offered a series of inconsistent and unconvincing explanations, including: “We have all these documents but we couldn't find this”; “So, for renovation works I can provide documents but I have not yet tendered in this Court”; “I answered before, all these documents I don't know whether to submit. So, I have the documents. The documents were in the building. The building was removed.” These shifting explanations suggest fabrication rather than genuine inability to produce documentation. [63] CIDL and Huang’s explanation that the relevant documents were kept in the Plaintiffs' offices and are now inaccessible is unpersuasive. If such documents were crucial to their defence, CIDL and Huang could have sought discovery from the Plaintiffs or issued subpoenas S/N Yvwtb2AFpk50KUgpFho0w to obtain them. However, they made no such attempt throughout the litigation. Moreover, when employees of the Plaintiffs who worked at the alleged “Plaintiffs offices” testified (PW2 Yang Li Ru, PW4 Zhao Li Sheng, and DW5 Michael Lee), counsel for CIDL and Huang did not cross-examine them regarding the existence of or access to these purported documents. This failure to pursue readily available procedural remedies significantly undermines the credibility of their explanation. [64] In contrast, the Plaintiffs presented compelling testimony from witnesses with direct knowledge of the RGP's management. Particularly persuasive was the evidence of DW5 Michael Lee, the Project Manager for the RGP, who categorically confirmed that CIDL had no involvement whatsoever in the development of the project. As the person responsible for overseeing all aspects of the RGP, Michael Lee’s testimony carries significant weight. The Plaintiffs also produced extensive documentary evidence of the project's development, none of which indicated CIDL's involvement. [65] The Defendants' reliance on the mere completion of Phases 2 and 3 of the RGP as evidence of CIDL's performance is misplaced. The completion of these phases demonstrates only that the project was completed, not who was responsible for its management and development. The overwhelming evidence indicates S/N Yvwtb2AFpk50KUgpFho0w that YSL, not CIDL, managed and developed the RGP throughout all phases. [66] Similarly, the Defendants' argument that payments to CIDL prove performance is circular reasoning. These payments are the very subject of the dispute, and cannot themselves validate the legitimacy of the Management Agreement. As the Plaintiffs correctly observe, it would be misleading to construe the fruit of alleged fraud as evidence of legitimate contractual performance. [67] Based on the totality of the evidence, I find that CIDL did not perform any services under the CIDL Management Agreement. The Management Agreement was therefore void for lack of consideration, and the payments made thereunder were wrongfully diverted from the Plaintiffs' group of companies. TSS’s Beneficial Ownership of CIDL from Inception [68] The Plaintiffs contend that TSS beneficially owned CIDL from its inception, well before the Management Agreement that was entered into on 25.7.2007. They maintain that CIDL was created by TSS as a vehicle to siphon funds from the RGP and the Gplus Group. The Plaintiffs rely on TSS’s 2014 Hong Kong Will which predates Huang's Deed of Trust by three years and explicitly bequeathed CIDL's assets, demonstrating that TSS considered himself the beneficial owner of CIDL well S/N Yvwtb2AFpk50KUgpFho0w before 2017. They further cite the statement of Krish Kumar of Messrs Krish Maniam & Co to the board of Golden Plus that CIDL was set up on TSS’s instructions and Huang's Statutory Declarations executed /affirmed by Huang on 31.12.2021 and 4.1.2022 (“the Statutory Declaration”) confirming TSS’s ownership of CIDL from inception. The Plaintiffs argue that it is crucial to determine when TSS acquired his beneficial interest in CIDL, as this affects whether the CIDL Management Agreement was procured by fraud and whether the board resolution authorising the agreement is null and void for breach of the Hong Kong Companies Ordinance and YIL's articles of association due to TSS and ST Goh's failure to disclose TSS’s interest. [69] CIDL and Huang maintain that Huang only entrusted CIDL to TSS when he signed Huang’s Deed of Trust dated 11.11.2017, and that there is no evidence to suggest TSS owned CIDL before this date. They assert that by November 2017, the RGP was close to completion and Huang was merely agreeable to grant TSS the benefit of CIDL's track record in the RGP. Huang testified that he gave his shares in CIDL to TSS in exchange for other projects which he had negotiated with TSS in China, and later clarified during re-examination that the transfer was made because “it would be easier for communication and for collaboration” and that he hoped to get TSS’s support in China for other S/N Yvwtb2AFpk50KUgpFho0w businesses, negotiations that ceased due to TSS’s demise. [70] Having carefully considered the evidence and submissions, I find the Plaintiffs' case compelling. First, it is significant that CIDL and Huang did not plead in their Defence when TSS acquired his interest in CIDL, nor was this assertion made in any of Huang's affidavits or witness statements filed in this action. The claim that TSS only acquired his interest in CIDL on 11.11.2017 emerged for the first time on Day 27 of trial, during Huang's oral testimony. This belated assertion undermines the credibility of the Defendants' position. [71] Second, the evidence directly contradicts the Defendants' claim that by 11.11.2017, “the RGP was close to completion.” According to PW1, Phase 3 of the RGP was only completed in July 2020, and work for Phase 4 commenced towards the end of 2021. This timeline demonstrates that the RGP was nowhere close to completion in November 2017, rendering these defendants' submission on this point factually incorrect. [72] Third, Huang's testimony regarding his transfer of CIDL shares to TSS lacks credibility and is unsupported by evidence. During cross-examination, Huang claimed he gave his shares to TSS “in exchange for other projects” in China, yet no evidence whatsoever was presented regarding these purported projects. His explanation S/N Yvwtb2AFpk50KUgpFho0w shifted during re-examination, where he testified that the transfer was made because “it would be easier for communication and for collaboration”. These inconsistent and unsubstantiated explanations suggest fabrication rather than truth. [73] Most compelling is the documentary evidence establishing TSS’s ownership of CIDL before 2017. TSS’s 2014 Hong Kong Will predates Huang's Deed of Trust by three years and explicitly bequeathed CIDL's assets, demonstrating that TSS considered himself the beneficial owner of CIDL well before 2017. This contemporaneous document carries significant weight as it reflects TSS’s own understanding of his ownership interest at a time when there was no motive to misrepresent the situation. [74] The chronology of events further supports this finding. CIDL was incorporated on 8.5.2007, just weeks before entering into the Management Agreement with YIL on 25.7.2007. The proximity of these dates suggests that CIDL was created specifically for the purpose of the Management Agreement rather than being an established entity with legitimate business operations. The Management Agreement conferred substantial rights and economic interests to CIDL in the development of the RGP, effectively channeling the proceeds from the project away from YIL and the Gplus Group. S/N Yvwtb2AFpk50KUgpFho0w [75] Huang's Statutory Declaration, though executed in late 2021, corroborate TSS’s ownership of CIDL from inception. While the Defendants challenge the reliability of these declarations, claiming they were signed under duress, the evidence does not support this contention. The declarations align with other documentary evidence, including TSS’s 2014 Will, and provide a coherent explanation for the arrangements that were put in place. [76] I therefore find that CIDL was, from its inception, beneficially owned by TSS. The purported transfer of beneficial ownership in November 2017 through Huang’s Deed of Trust merely formalised an existing arrangement rather than creating a new one. This finding has significant implications for the validity of the CIDL Management Agreement, as it means that TSS, as a director of YIL, failed to disclose his interest in CIDL when the agreement was executed, in breach of his fiduciary duties and applicable legal requirements. Artificial Creation of Debt Through the GPlus and Sri Serdang Loans [77] The Plaintiffs contend that the Gplus Loan – the USD1.5 million loan from CIDL to Golden Plus - under the Facility Agreement dated 18.10.2016 and Supplemental Agreement dated 28.2.2017, and the Sri Serdang Loan – the USD450,000 loan to Sri Serdang dated 11.12.2017, were not legitimate financial transactions but artificial S/N Yvwtb2AFpk50KUgpFho0w debts created as part of a broader fraudulent scheme. They assert that these loans were designed with onerous terms to ensure default, thereby enabling CIDL to seize control of valuable assets belonging to Golden Plus and its subsidiaries. The Plaintiffs rely on the testimony of TSH and Fai Fong, who admitted that Golden Plus and Sri Serdang were “doomed to default on the loans.” They further argue that the proceeds used for these purported loans were in fact monies previously diverted from the Gplus Group to CIDL under the sham CIDL Management Agreement. [78] CIDL and Huang maintain that the loans were legitimate financial transactions entered into at the request of TSH, then a director of the Plaintiffs. They contend that the Plaintiffs' action in denying CIDL the repayment of the said loans was done in bad faith and is untenable. They further submit that CIDL plays no role save for lending the sums to the Plaintiffs, and that the Plaintiffs' allegations are fueled by “new parties” within the Plaintiff companies seeking to avoid legitimate obligations under agreements entered into by previous management. [79] Having carefully examined the evidence before me, I find the Plaintiffs' case compelling. A critical aspect of this finding relates to the financial capacity of CIDL to extend loans totaling approximately USD2 million to Golden Plus and Sri Serdang. The evidence establishes that CIDL was incorporated on 8.5.2007 with a nominal paid-up S/N Yvwtb2AFpk50KUgpFho0w capital of merely HKD10. This minimal capitalisation is fundamentally inconsistent with CIDL's purported ability to extend substantial loans. Significantly, ST Goh, himself a defendant in this action, admitted under cross-examination that “CIDL did not have the means to have lent this money to Sri Serdang”. This admission by a key figure in the transactions severely undermines the legitimacy of the loans. [80] The evidence further reveals that CIDL's only source of income was derived from payments made under the CIDL Management Agreement, which has been established elsewhere in these proceedings to represent funds wrongfully diverted from the RGP. It follows logically that any loans purportedly extended by CIDL to Golden Plus and Sri Serdang would have been funded by monies improperly diverted from the Gplus Group itself - a circular arrangement that cannot be characterised as legitimate lending. [81] Particularly damning is the testimony of TSH and Fai Fong regarding the inevitability of default on these loans. During cross-examination, TSH admitted that “Golden Plus had no ongoing business and income at that time... [and] no funds to repay the loan”. Fai Fong corroborated this by stating “everybody knows that no funds [were available] to be paid”. These admissions reveal that the loans were structured with full knowledge that default was S/N Yvwtb2AFpk50KUgpFho0w inevitable, enabling CIDL to seize control of the secured assets. [82] The terms of the loans themselves were notably onerous. The GPlus Loan required repayment within just three months, while the Sri Serdang Loan stipulated a four-month repayment period. Both loans carried a 12% annual interest rate. These stringent terms, coupled with Golden Plus's acknowledged lack of income and business activity at the time, reinforced the inevitability of default. [83] CIDL's subsequent conduct regarding these loans further supports the finding that they were artificial debts. Following TSS’s death, CIDL was involved in contradictory transactions regarding these loans. On 26.8.2020, CIDL issued a receipt to Golden Plus acknowledging payment of the settlement sum of RM9,239,399, purportedly to facilitate a share allotment. However, CIDL later adopted a contradictory stance in Interpleader proceedings in the Kota Kinabalu High Court Originating Summons BKI-24NCvC-70/8-2020 (“the Interpleader Action”), claiming that the loan had not been settled, in an attempt to seize possession of land titles that secured the loan. [84] It is also notable that despite CIDL's assertions regarding the legitimacy of these loans, they have not filed any counterclaim for their repayment in the present S/N Yvwtb2AFpk50KUgpFho0w proceedings. This omission further undermines their position that these were genuine lending transactions. [85] I therefore find that the GPlus Loan and Sri Serdang Loan were not legitimate financial transactions but rather artificial debts created as part of the broader scheme to misappropriate assets from the Gplus Group. These loans were designed to ensure default, thereby enabling CIDL to seize control of valuable assets belonging to the Plaintiffs. The Plaintiffs' claim in this respect must therefore be allowed. Damages for Costs Incurred in Replacing Lost Title Documents [86] The Plaintiffs submit that while they are no longer seeking the specific relief under Paragraphs 70(viii) and 70(ix) of the SOC, as Sri Serdang has successfully secured new Issue Document of Titles in its name to replace those that were lost, they nevertheless continue to seek general damages for the costs incurred in obtaining these replacement title documents. The Plaintiffs contend that CIDL and Huang’s actions in relation to the title deeds forced Sri Serdang to incur substantial expenses to secure new title documents, and these costs should be borne by the Defendants as part of the broader fraudulent scheme to convert assets belonging to the Gplus Group. S/N Yvwtb2AFpk50KUgpFho0w [87] CIDL and Huang maintain that the claims relating to the title deeds should be dismissed. They assert that they only lodged caveats over the lands and did not take possession of the title deeds. CIDL and Huang further contend that the lodging of caveats was a legitimate action taken to secure loans extended to Golden Plus and Sri Serdang, which remain unpaid. They point to the Interpleader Action filed by Messrs Yap & Chin on 17.8.2020 in the Interpleader Action and the subsequent court order on 1.3.2021 directing the release of the 23 titles to Sri Serdang as evidence that they acted within their legal rights. [88] Having carefully considered the evidence, I find that the Plaintiffs' claim for general damages arising from the costs incurred in replacing the lost title documents should be allowed. The evidence reveals a calculated scheme involving CIDL, Huang, and other defendants to obtain control over valuable land assets belonging to the Gplus Group. CIDL and Huang conspired with Andrew, TSH, and Fai Fong to attempt to collect 23 title deeds held by Messrs Yap & Chin as stakeholders for the GPlus loan. The timing of this attempt, just before the crucial decision of the Kuala Lumpur High Court on 28.8.2020 in OS 131 regarding the composition of the board of Golden Plus, is particularly telling. This timing suggests a deliberate strategy to secure control over these assets before the conspirators potentially lost control of the Golden Plus board. S/N Yvwtb2AFpk50KUgpFho0w [89] The claim that CIDL and Huang “only lodged caveats and did not take possession of the titles” is contradicted by the evidence of their active participation in attempts to physically obtain the title deeds. While CIDL and Huang characterise their actions as legitimate steps to secure repayment of loans, the broader context of the case reveals a pattern of creating artificial debts designed to enable the seizure of valuable assets. The GPlus and Sri Serdang loans were structured with onerous terms to ensure default, enabling CIDL to seize control of the secured assets. [90] The loss of the original title documents and the subsequent need for Sri Serdang to secure new Issue Document of Titles resulted directly from the defendants' conduct. While the specific relief originally sought under Paragraphs 70(viii) and 70(ix) of the SOC is now moot due to Sri Serdang having successfully obtained replacement titles, the costs incurred in this process represent real financial loss stemming from these defendants' wrongful actions. Justice demands that the Plaintiffs be compensated for these expenses. [91] Furthermore, CIDL's contradictory positions regarding the loans is evidence of bad faith. On 26.8.2020, CIDL issued a receipt to Golden Plus acknowledging payment of a settlement sum of RM9,239,399, yet later adopted a contradictory stance in the Interpleader proceedings, claiming that the loan had not been settled. This S/N Yvwtb2AFpk50KUgpFho0w inconsistency further undermines CIDL and Huang's credibility regarding their intentions and actions concerning the title deeds. [92] Accordingly, while the Plaintiffs are no longer seeking the specific relief of delivery up of the original title deeds (which have been replaced), they are entitled to general damages for the costs incurred in replacing the relevant Issue Document of Titles. Admissibility and Reliability of Huang's Statutory Declarations [93] The Plaintiffs contend that the Statutory Declaration - the statutory declarations with identical content executed /affirmed by Huang on 31.12.2021 and 4.1.2022 - were voluntarily signed and constitute reliable evidence that can be used to impeach Huang's credibility due to inconsistencies between the declarations and his testimony at trial. The Plaintiffs argue that they properly introduced the Statutory Declaration after completing cross-examination of Huang on the matters addressed therein, having found material inconsistencies between his evidence at trial and the statements in the Statutory Declaration. They submit that Huang was not surprised by the production of the Statutory Declaration, as evidenced by his immediate response that he was “waiting to actually tender this document to this Court.” The Plaintiffs point to WeChat messages between Huang and YSL's lawyer, Jiang Chen, which demonstrate S/N Yvwtb2AFpk50KUgpFho0w Huang's active participation in drafting the Statutory Declaration, including providing information that only he would know, such as the name of his Malaysian lawyer. They further highlight that Huang was explicitly informed by lawyer Jiang that signing the Statutory Declaration was optional, directly contradicting any claim of coercion. [94] CIDL and Huang challenge the admissibility and reliability of the Statutory Declaration on several grounds. They argue that there is no basis to impeach Huang's evidence as the Statutory Declaration was allegedly procured under duress. Huang claims he was held under “financial ransom” and compelled to sign the Statutory Declaration because the Plaintiffs purportedly stopped making payments to contractors and subcontractors appointed and/or managed by CIDL following the dispute in this suit. The Defendants further submit that the Statutory Declaration was not translated to Huang, and that he was allegedly told the document would be kept in confidence. They assert that the Plaintiffs withheld the Statutory Declaration from the court and the parties until the penultimate days of trial, denying the Defendants sufficient opportunity to address it. Additionally, they contend that the Plaintiffs failed to lead any evidence on the drafting of the Statutory Declaration or call witnesses involved in dealings with Huang, suggesting that an adverse inference should be drawn against the Plaintiffs. S/N Yvwtb2AFpk50KUgpFho0w [95] Having carefully considered the evidence and submissions of the parties, I find that Huang's Statutory Declaration was voluntarily executed and constitute reliable evidence that can properly be used to assess his credibility. The procedure followed by the Plaintiffs in introducing the Statutory Declaration was appropriate and in line with the principles set out in Muthusamy v Public Prosecutor [1948] 1 MLJ 57 (HC), which requires that the witness's testimony be taken first before introducing a prior inconsistent statement. This approach ensures that any inconsistencies between the testimony and the prior statement can be properly identified and assessed. The Plaintiffs correctly produced the Statutory Declaration on 6.9.2023, after completing their cross-examination of Huang on the matters addressed in the declarations, having found material inconsistencies between his testimony and the statements contained therein. [96] Huang's immediate response upon being shown the Statutory Declaration is particularly telling. Rather than expressing surprise at the existence of the document, he stated: “I am waiting to actually tender this document to this court. This is very good.” This statement strongly suggests that Huang was not only aware of the Statutory Declaration but had anticipated its production and even considered tendering it himself. This contradicts the assertion that the document was somehow concealed or that Huang was denied an opportunity to address it. Moreover, the Statutory Declaration was signed on S/N Yvwtb2AFpk50KUgpFho0w
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31.12.2021 and 4.1.2022, more than a year and a half before Huang took the stand. He could have addressed the Statutory Declaration and the alleged circumstances surrounding its execution in his witness statement or during examination-in-chief by his counsel, but he chose not to do so. [97] The evidence regarding the circumstances of the Statutory Declaration's execution weighs strongly against Huang's claims of duress. The WeChat messages produced by CIDL and Huang themselves reveal Huang's active participation in drafting the Statutory Declaration, including exchanging versions of Paragraph 19 with lawyer Jiang in Mandarin. Crucially, Huang was inserting information such as the name of his and CIDL's Malaysian lawyer, Wee Choo Keong – information that could only have come from Huang himself. This clearly demonstrates his voluntary engagement with the process. [98] Most significantly, lawyer Jiang explicitly informs Huang: “If you are willing to sign, just sign, not willing to sign, then don't force it, there is no need to sign.” The message also states: “there cannot be any exchange of benefit,” directly contradicting the claim that the Statutory Declaration was signed under financial pressure. The fact that these messages were produced by CIDL and Huang themselves gives them particular evidentiary weight, as they cannot be dismissed as fabrications by the Plaintiffs. S/N Yvwtb2AFpk50KUgpFho0w [99] Huang's allegation that he signed the Statutory Declaration under duress due to payments withheld from sub-contractors is further undermined by his own admissions during cross-examination. He acknowledged that the contracts involving these sub-contractors were between them and the main contractor, Hai Tian Constructions Private Limited, not YSL. Additionally, when questioned about why CIDL, which was supposedly responsible for managing YSL's accounts under the CIDL Management Agreement, did not make the payments if they were indeed outstanding from YSL, Huang was compelled to admit that CIDL did not actually manage YSL's accounts – a significant concession that contradicts a central term of the CIDL Management Agreement. [100] The allegation that the Statutory Declaration was not translated to Huang is plainly contradicted by the evidence. Huang does not dispute that he signed the Mandarin translation of the Statutory Declaration at Exhibit P10. Furthermore, the WeChat messages show him exchanging draft versions of Paragraph 19 in Mandarin, clearly indicating his understanding of the document's content. [101] It is also significant that Huang, on his own volition, traveled to Shanghai to sign the Statutory Declaration before a Malaysian consulate officer. This occurred two months after he had inquired of lawyer Jiang about the process for signing the Statutory Declaration at the S/N Yvwtb2AFpk50KUgpFho0w Malaysian consulate. Such deliberate action over an extended period is inconsistent with a person acting under duress. [102] After the production of the Statutory Declaration, Huang was given ample opportunity to address it. With leave of this court, CIDL and Huang's counsel conducted an examination-in-chief of Huang on the Statutory Declaration. Counsel for the other Defendants were likewise allowed to cross-examine Huang on the document. Thereafter, Huang was cross-examined by counsel for the Plaintiffs and re-examined by his own counsel. This procedure afforded Huang a full and fair opportunity to explain the circumstances surrounding the Statutory Declaration. [103] Finally, while the Defendants argue that the Plaintiffs failed to call witnesses involved in dealing with Huang regarding the Statutory Declaration, I find that the documentary evidence, particularly the WeChat messages produced by CIDL and Huang themselves, provides a clear and compelling account of the circumstances surrounding the Statutory Declaration's execution. This documentary evidence, coupled with Huang's own admissions during cross-examination, renders additional witness testimony unnecessary. S/N Yvwtb2AFpk50KUgpFho0w [104] For these reasons, I find that Huang's Statutory Declaration was voluntarily executed and constitute reliable evidence. The Defendants' challenges to the admissibility and reliability of the Statutory Declaration are rejected. The Statutory Declaration may properly be considered when assessing Huang's credibility and the weight to be given to his testimony. Admissibility and Weight of the Plaintiffs' Expert Evidence [105] CIDL and Huang submit that the testimony of the Plaintiffs' expert witnesses is neither relevant nor helpful in this case. They appear to suggest that Sajjad Akhtar's work is “shoddy” and that Martin Wong's reliance on factual assumptions regarding TSS’s interest in CIDL undermines the utility of his expert opinion. The Defendants have not provided their own expert witnesses to counter the Plaintiffs' expert evidence. [106] The Plaintiffs contend that the expert testimony of Martin Wong and Sajjad Akhtar is both relevant and helpful to the court's determination of the issues in this case. They argue that in circumstances where only one expert opinion is available, the court should not reject that opinion outright without first considering whether it is obviously indefensible and unsupported by the basic facts of the case. Regarding Martin Wong, a barrister from Hong Kong, the Plaintiffs submit that his expertise on the validity of the CIDL Management Agreement under Hong S/N Yvwtb2AFpk50KUgpFho0w Kong's Companies Ordinance and YIL's Articles of Association is appropriate, even though it relies on the factual assumption that TSS had an undisclosed interest in CIDL. As for Sajjad Akhtar, the Plaintiffs emphasise that his investigation focused not merely on board-level decisions but extended to operational realities “on the ground,” including determining who was responsible for obtaining permits, engaging with government departments, and negotiating construction contracts for the RGP. [107] Having considered the submissions of both parties, I find that the expert evidence provided by Martin Wong and Sajjad Akhtar is admissible and of substantial assistance to the court in determining the issues in this case. The principle established by the Court of Appeal in Maju Ikan Sdn Bhd v Barclays Bank Plc [2015] 1 MLJ 171 is applicable here. Where only one expert opinion is available on a particular issue, the court should not reject that opinion without first judicially considering whether it is “obviously indefensible and unsupported by the basic facts of the case.” In the present case, the Defendants have chosen not to call expert witnesses of their own, leaving the court with only the Plaintiffs' expert evidence to consider. [108] With respect to Martin Wong's expert testimony, I find that his expertise as a Hong Kong barrister makes him well-qualified to opine on the legal implications of the CIDL S/N Yvwtb2AFpk50KUgpFho0w Management Agreement under Hong Kong's Companies Ordinance and YIL's Articles of Association. The fact that his opinion was based on the assumption that TSS had an undisclosed interest in CIDL does not diminish its utility, as it is well-established that experts may rely on factual assumptions presented to them. This approach allows the court to understand the legal consequences that would follow if certain facts are established. In the event that I find TSS did have an undisclosed interest in CIDL, Martin Wong's expert opinion will be highly relevant to determining the validity of the Management Agreement. [109] As for Sajjad Akhtar's evidence, I find his methodology to be thorough and reliable. As he explained during cross-examination, the scope of his work was not limited to reviewing board-level decisions but extended to examining “what happened on the ground as to the management in control of the project on the ground and who carried out the work, who were the personnel involved and so on and so forth.” During re-examination, he elaborated that his investigation sought evidence at the operational level regarding “how there was involvement, how there was supervision, who carried out and who was responsible for obtaining the permits, engaging with the government departments... who signed the contracts, who negotiated the construction contract, the other sub-contracts, design consultants.” This comprehensive approach, which included interviewing S/N Yvwtb2AFpk50KUgpFho0w key personnel involved in the project and reviewing original copies of pertinent project documents in Shanghai, provides a sound basis for his conclusion that CIDL had no significant role or involvement in carrying out the RGP. [110] The Defendants' characterisation of Sajjad Akhtar's work as “shoddy” is not supported by any substantive critique of his methodology or findings. In the absence of credible evidence to the contrary, I find Sajjad Akhtar's expert testimony to be methodical, well-grounded, and highly relevant to the determination of CIDL's actual involvement in the RGP. [111] In sum, I find that the expert evidence provided by Martin Wong and Sajjad Akhtar is admissible, relevant, and helpful to the court's determination of the issues in this case. The weight to be accorded to their opinions will ultimately depend on the court's findings regarding the underlying factual matters, particularly whether TSS had an undisclosed interest in CIDL and whether CIDL actually performed any services under the CIDL Management Agreement. However, the expert evidence itself constitutes valuable assistance to the court in navigating these complex legal and factual issues spanning multiple jurisdictions and spanning over a considerable period of time. S/N Yvwtb2AFpk50KUgpFho0w Characterisation of the Nature of the Suit [112] CIDL and Huang characterise this suit throughout their submissions as arising from “internal disputes and squabbles” among members and directors of the Plaintiff companies where “new parties now in control have sought to challenge previous contracts entered into.” They assert that “CIDL and Huang are not members of and are not involved in any of the Plaintiff companies” and that “CIDL is being questioned by the Plaintiffs only because the directors of the Plaintiffs who entered into the said agreements are now no longer a part of the Plaintiffs and there are new parties in control.” CIDL and Huang ultimately conclude that “Put simply, this action has nothing to do with CIDL or Huang.” [113] The Plaintiffs contend that CIDL and Huang have deliberately mischaracterised this suit as a mere internal dispute between members and/or directors of the Plaintiff companies. They argue that CIDL and Huang's submissions speculate, without evidential basis, that this action was pursued by “new parties” in the Plaintiffs' companies to obtain illegal evidence from Huang and avoid the Plaintiffs' obligations under agreements with CIDL. The Plaintiffs submit that this characterisation is a newly advanced case theory that was not pleaded and is entirely unsupported by the evidence adduced at trial. They maintain that this theory is nothing more than a red S/N Yvwtb2AFpk50KUgpFho0w herring and, in any event, irrelevant to the substantive issues to be determined by the court. [114] Having carefully considered the pleadings and evidence in this case, I find the Plaintiffs' position to be persuasive. The characterisation advanced by CIDL and Huang that this suit is merely an internal corporate dispute is inconsistent with the pleaded case and the substantial evidence adduced at trial. This characterisation appears to be a post hoc rationalisation that was not pleaded in their Defence, where they simply denied the allegations of fraud and conspiracy. CIDL and Huang have not identified any specific pleading in their Defence that articulates this theory, nor have they pointed to evidence that would substantiate it. [115] The nature of this action, as clearly set out in the SOC, is one of fraud and conspiracy to defraud the Plaintiffs, spanning across multiple jurisdictions over a period of more than two decades. The Plaintiffs' claims against CIDL and Huang are specific and detailed, alleging their direct involvement in fraudulent schemes designed to siphon funds from the Gplus Group, including through the CIDL Management Agreement which purported to appoint CIDL to manage the RGP, when in fact CIDL performed no services under this agreement. S/N Yvwtb2AFpk50KUgpFho0w [116] The evidence presented during the 33-day trial included testimony from multiple witnesses and extensive documentary evidence addressing the substantive allegations against CIDL and Huang. The Plaintiffs produced voluminous project documents including loan agreements, approvals and permits for the construction of the RGP, and called witnesses with direct knowledge of its management and development who confirmed CIDL's non-involvement. CIDL and Huang, by contrast, failed to produce a single document to substantiate their alleged performance of the CIDL Management Agreement, as acknowledged by Huang himself during cross-examination. [117] The case before this court is not a dispute about the validity of corporate decisions made by previous management of the Plaintiff companies. Rather, it concerns whether CIDL and Huang, along with other defendants, engaged in fraudulent conduct to the detriment of the Plaintiffs. The attempts by CIDL and Huang to reframe the issues as an internal corporate dispute appear to be designed to avoid addressing the substantive allegations against them. [118] The characterisation of this action as an attempt by “new parties” to challenge contracts entered into by previous management fundamentally misunderstands the nature of a fraud claim. If contracts were induced by fraud or entered into as part of a fraudulent scheme, they are S/N Yvwtb2AFpk50KUgpFho0w voidable regardless of which corporate officers executed them. Corporate acts tainted by fraud cannot be legitimised simply because they were performed by persons who held corporate office at the time. [119] For these reasons, I reject CIDL and Huang’s characterisation of this action as merely an internal corporate dispute. The Plaintiffs' claims must be assessed on their substantive merits based on the evidence presented, not dismissed through an unpleaded and unsupported theory about the motivations behind the litigation. Pacific Victor (2nd Defendant), Valarie (5th Defendant), Maria (6th Defendant), D13, D14 (Personal Representatives of TSS - UK and HK Wills) (13th and 14th Defendants) [120] From the facts of the case, defences relied on by Pacific Victor, Maria, Valarie, D13 and D14 and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether the Tenancy Agreements between YIL and Pacific Victor from 2009-2018 constituted artificial arrangements designed to create fictitious debt and divert company funds. S/N Yvwtb2AFpk50KUgpFho0w b) Whether Maria and Valarie orchestrated a fraudulent scheme to allot 46,196,995 shares in Golden Plus to create artificial majority control and entrench control by TSS's family members. c) Whether Maria's filing of Kuala Lumpur High Court Originating Summons No. WA-24NCC- 524-10/2019 seeking appointment of receivers and managers over Golden Plus constituted part of a coordinated conspiracy to obstruct legitimate shareholder control of the company. d) Whether TSS was the beneficial owner of CIDL and fraudulently utilised it to siphon RMB166,102,428.00 from the Gplus Group through sham management agreements and compensation payments. e) Whether the Plaintiffs' claims were time-barred under the Limitation Act 1953 given TSS's alleged fraudulent concealment of his ownership interest in CIDL. f) Whether the Plaintiffs' action against TSS's United Kingdom Estate was time-barred under Section 8(3) of the Civil Law Act 1956 in circumstances involving fraudulent concealment. S/N Yvwtb2AFpk50KUgpFho0w [121] Below is my analysis based on the issues above. Artificial Creation of Debt Through Pacific Victor Tenancy Agreements [122] The Plaintiffs contend that the Tenancy Agreements entered into between YIL and Pacific Victor between 2009 and 2018 were sham contracts designed to create artificial debts totalling approximately HKD10.2 million. They assert that possession of the Mayfair Flat was never delivered to YIL, resulting in a total failure of consideration. The Plaintiffs argue that these agreements constituted a fail-safe mechanism whereby the late TSS could activate the fictitious debt whenever his fraudulent scheme of siphoning monies from the RGP was at risk. They further claim that TSS, as director of YIL, failed to disclose his interest in Pacific Victor (owned by his wife, Maria) to the board of YIL and Golden Plus, in breach of fiduciary duties. Following TSS’s death, Maria weaponised this artificial debt by issuing a statutory demand on 18.9.2020, strategically timed nine days after the termination of the CIDL Management Agreement. [123] Pacific Victor, Maria, and the Personal Representatives of TSS’s estate (D13 and D14) deny these allegations, contending that the Tenancy Agreements were legitimate arrangements implementing TSS’s board-approved housing allowance of HKD100,000 monthly, which formed part of his remuneration package approved by S/N Yvwtb2AFpk50KUgpFho0w Golden Plus's board on 27.2.2009. They argue that under Clause 2(k) of the Tenancy Agreements, possession was never intended to be delivered to YIL for corporate use but was for “occupation by [TSS], his immediate family and servants.” The Defendants further assert that TSS’s interest in Pacific Victor was properly disclosed in Golden Plus's audited accounts between 2010-2018 as “rental paid to a company related to a director of a subsidiary.” They maintain that YIL suffered no loss since the rental payments merely discharged Golden Plus's obligation to pay TSS’s housing allowance, and that the Plaintiffs failed to interview Lee Ying Kit, the YIL employee authorised to enter into the Tenancy Agreements. [124] After careful examination of the evidence, I find the Plaintiffs' case more persuasive. The Tenancy Agreements were artificial arrangements designed to divert funds from the Gplus Group to TSS’s family. While the Defendants rely heavily on the purported board approval of TSS’s housing allowance on 27.2.2009, the evidence demonstrates a crucial disconnection between this approval and the Tenancy Agreements. No board resolution specifically authorised the conversion of TSS’s housing allowance into rental payments to Pacific Victor. YIL's Director's Resolution dated 15.5.2009 merely approved entering into the Tenancy Agreements without linking them to TSS’s remuneration package or acknowledging his interest in Pacific Victor. This S/N Yvwtb2AFpk50KUgpFho0w disconnect is significant and unexplained by the Defendants. [125] PW1 Wong Koon Wai testified that the disclosed amounts (RM475,680 for 2010 and RM454,000 for 2009) do not correspond to the HKD1.2 million annual rental payable to Pacific Victor. This discrepancy undermines the Defendants' claim of adequate disclosure. The Hong Kong Law Expert, Martin Wong, having reviewed YIL's articles and the legal position in Hong Kong regarding directors' disclosure duties, confirmed the inadequacy of TSS’s disclosure regarding his interest in Pacific Victor. [126] Furthermore, the contractual structure of the arrangements belies their claimed purpose. While the Defendants assert these were merely housing allowances for TSS, the Tenancy Agreements were executed between two corporate entities - YIL and Pacific Victor - not between YIL and TSS. This corporate veil serves no legitimate business purpose if the arrangements were simply to provide housing for TSS. More tellingly, Fai Fong, Golden Plus's General Manager of Finance, testified she was entirely unaware of the Tenancy Agreements' existence, which calls into serious question how meaningful any supposed “disclosure” in the audited accounts could have been. S/N Yvwtb2AFpk50KUgpFho0w [127] The evidence reveals that TSS continued claiming accommodation expenses for hotels and his Masterpiece residence while YIL was paying rent to Pacific Victor. The Defendants' characterisation of these as “distinct” expenses is unpersuasive given the absence of any board resolution permitting such double-dipping. ST Goh, who signed the Tenancy Agreements on behalf of YIL, admitted during cross-examination that he was unaware of Maria's ownership of Pacific Victor until trial. This lack of knowledge by a signatory to the agreements further undermines the Defendants' claims of proper disclosure and approval. [128] Most significantly, Maria's decision to issue a statutory demand on 18.9.2020 - precisely nine days after the termination of the CIDL Management Agreement on 9.9.2020 - reveals the tactical nature of these arrangements. The tenancy debt had purportedly been outstanding for over two years, yet Pacific Victor chose this particular moment to enforce it, immediately following an action that threatened the interests of Maria and Valarie under TSS’s estate. This strategic timing demonstrates that the Tenancy Agreements were designed as a mechanism that could be weaponised when necessary to protect the broader fraudulent scheme. S/N Yvwtb2AFpk50KUgpFho0w [129] These defendants' criticism of the Plaintiffs for not interviewing Lee Ying Kit lacks merit. Lee Ying Kit is an employee of YIL and the Golden Plus group who was in charge of the Tenancy Agreements. According to the principle established in Juahir Bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627, “He who alleges must prove such allegation and the onus is on the appellant to do so.” Since Pacific Victor and Maria assert as their defence that the housing allowance translated into rental payments, they bear the burden of producing Lee Ying Kit as their witness to substantiate this claim. [130] As the court held in Juahir: “The fact that the appellant was unable to secure the attendance of [the witness] does not shift the burden to the respondent to produce the witness and testify as to what he had uttered, as firstly, the respondent never raised such an allegation and, secondly, has denied even making one.” Similarly, there is no obligation on the Plaintiffs to produce evidence disproving the defendants' assertion about the housing allowance. [131] Any adverse inference under Section 114(g) of the Evidence Act 1950 would operate against Pacific Victor and Maria for failing to call Lee Ying Kit, not against the Plaintiffs. As further clarified in Juahir: “There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the S/N Yvwtb2AFpk50KUgpFho0w party who alleges, and the fact that the appellant was unable to do so is fatal to his case.” [132] In conclusion, the Tenancy Agreements between YIL and Pacific Victor were artificial constructs designed to divert funds from the Gplus Group and create a mechanism that could later be weaponised against the company. The absence of proper corporate authorisation, inadequate disclosure of TSS’s interest, concurrent claims for additional accommodation expenses, and the strategic timing of the statutory demand all point to a scheme that goes beyond legitimate business arrangements. The Plaintiffs' claim regarding the Pacific Victor Tenancy Agreements is accordingly allowed. Fraudulent Share Allotment to Create Artificial Majority Control [133] The Plaintiffs contend that Valarie, Maria, and their associates orchestrated a fraudulent scheme to allot 46,196,995 shares in Golden Plus to one Eng on 26.8.2020. This allotment allegedly diluted existing shareholders' control from 28.81% to 21.92%, creating an artificial majority bloc intended to entrench control by TSS’s family members and protect the proceeds of their prior fraudulent activities, particularly the siphoning of funds from the RGP. The Plaintiffs rely on contemporaneous email exchanges and WeChat logs demonstrating collusion among the defendants. They S/N Yvwtb2AFpk50KUgpFho0w assert that this share allotment forms part of a broader conspiracy, and seek to recover, among other losses, RM346,810 in legal costs incurred in Kuala Lumpur High Court Originating Summons WA-24NCC-444- 09/2020 (“OS 444”) to invalidate the fraudulent allotment. [134] Maria and Valarie deny involvement in the share allotment, arguing that the board of Golden Plus, not they personally, approved the transaction. They contend that since the allotment was later invalidated by the High Court in OS 444, with no resultant change in shareholding, Golden Plus suffered no loss. They further submit that the RM346,810 in legal costs cannot be recovered as they were not specifically pleaded as special damages, and cite Golden Star v Ling Peek Hoe & Anor & Another Appeal [2024] CLJU 819 (FC) to argue that costs from one proceeding cannot be recovered in another. [135] After careful consideration of the evidence, I find the Plaintiffs' position compelling. The contemporaneous documentary evidence reveals a calculated scheme to subvert legitimate shareholder control through the fraudulent allotment of shares. While the Defendants attempt to distance Maria and Valarie from the board's decision, the evidence demonstrates their active involvement. First, Maria's communications with TSH regarding the Adjourned EGM Decision to be delivered on 28.8.2020 show her anticipation of the scheme. When S/N Yvwtb2AFpk50KUgpFho0w informed of the court's decision, she exclaimed “Oh dear” before thanking TSH for confirming the shares had been allotted. Such immediate interest is inconsistent with the conduct of a disinterested party. [136] Second, Andrew's email dated 19.8.2020 confirms that Maria and Valarie were kept informed about difficulties with the “1st Plan” for share issuance before the board of Golden Plus resolved to enter into the Settlement Agreement with Eng and CIDL on 21.8.2020. Maria herself confirmed during cross-examination that she and Valarie were aware of this plan. This awareness predated the board's formal resolutions, undermining the contention that they merely learned of decisions after they were made. [137] Third, the email exchanges of 25.8.2020 between Maria, Valarie, and Andrew are particularly revealing. Maria's email explicitly stated that “CIDL will receive no repayment of RM9,239,399.00 from EHT while CIDL still proceeds to confirm the receipt of the Advance.” This demonstrates that the purported debt settlement was illusory - CIDL would acknowledge receipt without actually receiving funds. The fact that Maria and Valarie had engaged Deloitte as advisors on this transaction further evidences their active participation rather than passive knowledge. S/N Yvwtb2AFpk50KUgpFho0w [138] Fourth, if successfully implemented, the scheme would have resulted in the allotted shares being ultimately transferred to Andrew and Valarie equally, with no money exchanging hands. Even after the shares were purportedly allotted to Eng, Maria remained involved, confirming that “Party B” was “Duwee” and insisting on changing lawyers for Duwee. These actions reveal continued orchestration of the scheme beyond the board's formal decision-making. [139] The Defendants' argument that no loss occurred because the share allotment was later invalidated misconceives the nature of conspiracy liability. In conspiracy claims, damages flow from the concerted action toward an unlawful end, regardless of whether individual acts succeed. The legal costs of RM346,810 incurred to invalidate the fraudulent share allotment represent a genuine loss stemming directly from the Defendants' wrongful conduct. Contrary to the Defendants' submission, these damages are recoverable as general damages in a conspiracy claim without specific pleading as special damages. The position in Golden Star v Ling Peek Hoe is distinguishable, as it is not a case where the same parties seek to recover costs which ought to Significantly, Valarie failed to appear in these proceedings to defend herself against serious allegations, despite being one of the co-authors of the emails regarding the implementation of the share allotment plan. Following the principle in Section 114(g) of the Evidence S/N Yvwtb2AFpk50KUgpFho0w Act 1950, adverse inferences must be drawn from her failure to testify and rebut the documentary evidence implicating her.have been recovered in the previous proceedings, in the present proceedings. [140] In conclusion, the evidence establishes on a balance of probabilities that Maria and Valarie actively participated in the fraudulent allotment of shares as part of a broader conspiracy to maintain control over Golden Plus and protect the proceeds of earlier fraudulent schemes. The Plaintiffs' claim regarding the fraudulent share allotment is accordingly accepted. Coordinated Legal Proceedings to Obstruct Shareholder Control [141] The Plaintiffs contend that Maria filed Kuala Lumpur High Court Originating Summons WA-24NCC-524- 10/2019 (“OS 524”) seeking appointment of receivers and managers over Golden Plus as part of a coordinated strategy with other Defendants to prevent the majority shareholders from reconstituting the board of directors. The Plaintiffs argue that OS 524 was filed a mere two days after Kuala Lumpur High Court Originating Summons No. WA-24NCC-519-10/2019 (“OS 519”) was filed by Andrew and Yong Chooi Lan, and both applications relied on identical false allegations against Jason Teo previously rejected in Kuala Lumpur High Court Originating Summons WA-24NCC-354- S/N Yvwtb2AFpk50KUgpFho0w 07/2019 (“OS 354”) and Kuala Lumpur High Court Suit No. WA-22NCC-559-10/2019 (“Suit 559”). They submit that the timing of OS 524 was strategically calculated to counter an EGM called by three members of Golden Plus to reconstitute the board, which would have removed the conspirators from control. The Plaintiffs maintain that this action forms part of a broader conspiracy to preserve fraudulent activities even if no direct monetary loss resulted from the dismissed application. [142] These defendants deny any improper coordination, arguing that Maria was merely exercising her legitimate rights as a shareholder of Golden Plus to seek the appointment of receivers and managers. They submit that since OS 524 was ultimately dismissed by the court, no loss was suffered by the Plaintiffs, and consequently, no actionable conspiracy or fraud can be established. Maria contends that her actions were independent and based on genuine concerns regarding the management of Golden Plus. [143] After careful consideration of the evidence presented, I find the timing and circumstances of OS 524 to be highly probative of coordination between Maria, Andrew and Yong Chooi Lan to obstruct legitimate shareholder action. The contemporaneous evidence demonstrates that the application for appointment of receivers and managers was consistent with advice given by Livingstone Corporation Advisory & Finance (“Livingstone”) and Dr. S/N Yvwtb2AFpk50KUgpFho0w TL Wong to TSH and Andrew shortly before the filings. The remarkable similarity in the allegations made in both OS 524 and OS 519, particularly the reliance on identical allegations against Jason Teo that had already been rejected in OS 354, strongly indicates a common design rather than independent exercise of shareholder rights. Had Maria been acting independently, it is improbable that her application would have mirrored OS 519 in such precise detail and timing. [144] The court notes that TSH subsequently admitted during cross-examination that the claims of misappropriation against Jason Teo were fabricated, which fundamentally undermines the legitimacy of both OS 524 and OS 519. This admission transforms what might otherwise be considered legitimate legal proceedings into vexatious actions designed to frustrate proper corporate governance. The fact that these applications were filed immediately after three members of Golden Plus called for an EGM to reconstitute the board further reinforces the inference that the primary purpose was to prevent the majority shareholders from exercising their legitimate rights. [145] The Defendants' argument that no loss was suffered due to the dismissal of OS 524 misapprehends the nature of conspiratorial liability. As established in the authorities cited by the Plaintiffs, the essence of conspiracy lies in the concerted action toward an unlawful purpose, not S/N Yvwtb2AFpk50KUgpFho0w necessarily in the success of each individual act. The filing of OS 524 represents an overt act in furtherance of a broader conspiracy to preserve control over Golden Plus and protect the proceeds of alleged fraudulent schemes, regardless of whether that particular action succeeded. [146] The contemporaneous sequence of events - the advice from Livingstone and Dr. TL Wong, followed by the near-simultaneous filing of OS 519 and OS 524, all in response to the proposed EGM - provides compelling circumstantial evidence of coordination that cannot be reasonably attributed to coincidence. When viewed in the context of other actions taken by the Defendants during this period, including the attempted fraudulent share allotment and the enforcement of purported debts under the Pacific Victor Tenancy Agreements, a clear pattern of coordinated activity emerges. [147] In conclusion, I find that Maria's filing of OS 524 was not an independent exercise of shareholder rights but rather a calculated component of a broader conspiracy to obstruct legitimate shareholder control of Golden Plus. The Plaintiffs' claim on this issue is accordingly allowed. S/N Yvwtb2AFpk50KUgpFho0w TSS’s Ownership of CIDL and Liability for Fraudulent Transactions [148] The Plaintiffs contend that the late TSS was the beneficial owner of CIDL from its inception in 2007 and utilised it as an instrument to siphon RMB166,102,428.00 from the Gplus Group through sham management agreements and purported compensation payments to a dissolved entity, Heng Fat. They assert that contemporaneous documentation, witness testimony, and subsequent actions by TSS’s beneficiaries provide overwhelming evidence that TSS engineered the scheme to defraud Golden Plus. The Plaintiffs rely on multiple sources of evidence including Messrs. Krish Maniam's letter confirming CIDL was set up on TSS’s instructions, board minutes showing TSS promoted CIDL to the board, TSS’s signature on relevant agreements, the fact that all payments to CIDL required TSS’s authorisation as Legal Representative of YSL, Huang's Statutory Declaration, and TSS’s Hong Kong Wills from 2014 and 2017 bequeathing “receivables from CIDL.” [149] D13 and D14 (Personal Representatives of TSS’s estate under the United Kingdom and Hong Kong Wills) submit that there is no credible evidence establishing TSS had any interest in CIDL before 2014, arguing that the earliest documentary evidence of such interest is TSS’s 2014 Hong Kong Will. They contend that the transactions involving RMB166,102,428.00 were properly approved by S/N Yvwtb2AFpk50KUgpFho0w the board of Golden Plus, that there is no basis to link TSS with the CIDL and Heng Fat payments, and that the claims are time-barred. They further argue that the Plaintiffs' investigation was predetermined to find wrongdoing, noting that YIL terminated the CIDL Management Agreement on 9.9.2020 before the reconstituted board commenced its investigation in October 2020. [150] Upon careful examination of the evidence, I find the Plaintiffs' case compelling. The chronology of events and contemporaneous documentation establish that TSS was indeed the controlling mind behind CIDL from its inception, and that he used his position as Legal Representative of YSL and director of YIL to orchestrate payments to CIDL without corresponding services being rendered. While the Defendants emphasise that TSS’s interest in CIDL is only documented from 2014 onwards, this ignores substantial evidence of his earlier involvement. Messrs. Krish Maniam's letter of opinion dated 12.4.2013 to the board of Golden Plus explicitly states that CIDL was set up on TSS’s instructions. The board minutes show that TSS personally informed the board that CIDL would be set up as a special purpose vehicle in China to carry out management obligations under the Management Agreement. It is significant that TSS was promoting CIDL to the board when he had a concealed interest in the company. S/N Yvwtb2AFpk50KUgpFho0w [151] TSS’s central role is further evidenced by his letter to the board dated 26.4.2013 responding to BURSA queries regarding Heng Fat, in which he provided a narrative about the transition from Heng Fat to CIDL. This letter stands as a contemporaneous document authored by TSS himself, explaining how Heng Fat supposedly introduced CIDL to YIL. The fact that TSS and ST Goh, as the only directors of YIL, passed resolutions to enter into the Management Agreement and Addendum on terms unfavourable to YIL without properly informing the board further suggests deliberate concealment of TSS’s interest. [152] Particularly troubling is the evidence showing TSS as the signatory to the Mutual Termination Agreement which provided for payment of RMB52,000,000.00 to Heng Fat, a company that had ceased to exist since 2001, some eight years prior to the purported compensation payment. That these payments were made to “nominees” (Shenzhen Yinzhengcheng Technology Co and Shenzhen Wendafei Technology Co) rather than to Heng Fat directly, with requests from CIDL signed by Huang and requests from YIL to YSL signed by TSS, demonstrates TSS’s control over the flow of funds. [153] Yang Li Ru (PW2) testified that requisitions for payments were submitted to the General Manager's office - TSS’s office - which required the stamp of the Legal Representative of YSL, a position held by TSS. This S/N Yvwtb2AFpk50KUgpFho0w procedural arrangement ensured TSS’s control over all financial disbursements related to the project. The absence of any documentation evidencing CIDL's actual involvement in the RGP - no staff records, office records, operational documents, or management accounts - further supports the inference that CIDL was merely a vehicle for diverting funds rather than a legitimate service provider. [154] Huang's testimony under cross-examination was particularly unpersuasive. He was unable to produce any credible documentary evidence of CIDL's operations or involvement in the RGP. This stands in stark contrast to the testimony of the Plaintiffs' witnesses who were directly involved in the project's management and provided consistent accounts of YSL's role in spearheading the development without CIDL's involvement. [155] While the defendants rely on board approvals to legitimise the transactions, these approvals were obtained without disclosure of TSS’s interest in CIDL. It is a fundamental principle that fraud unravels all. In Lazarus Estates Ltd v Beasley [1956] 1 QB 702 (English CA), Lord Denning famously declared: “No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful S/N Yvwtb2AFpk50KUgpFho0w not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever.” Board approvals procured through material non-disclosure cannot sanitise fraudulent transactions. TSS’s failure to disclose his interest in CIDL vitiates any such approvals and goes to the root of the validity of the Management Agreement. [156] The Defendants' argument that the claim is time-barred must also fail. Under Section 29 of the Limitation Act 1953, the limitation period for fraud is postponed until discovery of the fraud. The evidence shows that the Plaintiffs only discovered TSS’s ownership of CIDL following his death in 2018, specifically through the Affirmation Verifying Schedule of Assets and Liabilities affirmed by the executrices of TSS’s Hong Kong Will on 6.5.2019, which disclosed that TSS had a 97.5% shareholding in CIDL with Huang holding those shares on trust for TSS. This action was filed on 10.12.2020, well within the six-year limitation period from discovery. [157] The defendants' suggestion that YIL's termination of the CIDL Management Agreement on 9.9.2020, before the reconstituted board's investigation in October 2020, indicates a predetermined conclusion is unfounded. As PW1 testified, the focus of the investigation was on CIDL's involvement in the RGP, and the conclusion that TSS was CIDL emerged from the absence of evidence supporting CIDL's involvement despite significant S/N Yvwtb2AFpk50KUgpFho0w payments being made. The directors of YIL were acting responsibly in terminating the agreement after discovering TSS’s interest in CIDL and obtaining legal advice in Hong Kong. [158] The subsequent actions of TSS’s beneficiaries - Maria, Valarie, and Andrew - in attempting to seize control of Golden Plus and its subsidiaries after TSS’s death further corroborates the fraudulent scheme. These overt acts, including the fraudulent share allotment and the weaponisation of artificial debt through Pacific Victor, formed part of a coordinated effort to protect the proceeds of the fraud bequeathed to them under TSS’s will. Their elaborate efforts to maintain control over the companies would be inexplicable absent a significant financial interest in preserving TSS’s fraudulent arrangements. [159] In conclusion, the evidence overwhelmingly establishes that TSS was the controlling mind behind CIDL from its inception, that he used this entity to divert RMB166,102,428.00 from the Gplus Group without legitimate services being rendered, and that his estate should be held liable for these fraudulent transactions. The claim is not time-barred, and the board approvals relied upon by the Defendants were vitiated by TSS’s fraudulent non-disclosure of his interest in CIDL. S/N Yvwtb2AFpk50KUgpFho0w Application of Limitation Act 1953 to Claims Involving Fraudulent Concealment [160] The Plaintiffs contend that their action, filed on 10.12.2020, is not time-barred as they rely on Section 29 of the Limitation Act 1953, which extends the limitation period until the date when fraud is first discovered or could with reasonable diligence have been discovered. They assert that the late TSS’s fraudulent concealment of his ownership interest in CIDL and Manfield was only discovered following the reading of his Hong Kong Will in April 2018, and more specifically, through the Affirmation Verifying Schedule of Assets and Liabilities affirmed by the executrices of TSS’s Hong Kong Will on 6.5.2019, which disclosed that TSS held a 97.5% shareholding in CIDL with Huang holding those shares on trust for him. The Plaintiffs argue that TSS’s position as the Corporate Representative of Golden Plus's investments in China, as the Legal Representative of YSL and Shanghai Roxy, and as one of only two directors of Golden Plus's Hong Kong subsidiaries, enabled him to control the narrative and conceal his wrongdoing. [161] D13 and D14 (Personal Representatives of TSS’s estate under the United Kingdom and Hong Kong Wills) argue that the Plaintiffs' claims are time-barred as the transactions involving CIDL and Heng Fat were approved by the board of Golden Plus and could have been discovered through reasonable diligence much earlier. S/N Yvwtb2AFpk50KUgpFho0w They contend that the special audit conducted by PwC in 2011 should have revealed any irregularities, and that the Plaintiffs had “already convinced themselves of TSS’s alleged wrongdoings” before conducting their investigation after October 2020. The Defendants further assert that there is no credible evidence linking TSS to CIDL before 2014, as the earliest document showing his interest is his draft Hong Kong Will prepared in that year. [162] After careful consideration of the evidence, I find that the Plaintiffs' action is not time-barred. Section 29(1) of the Limitation Act 1953 provides that “when the action is based upon the fraud of the defendant or his agent...the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.” The key issue is whether the Plaintiffs could, through reasonable diligence, have discovered TSS’s ownership of CIDL and his fraudulent conduct before 2018-2019. The evidence demonstrates they could not have done so due to TSS’s systematic concealment and the structural control he exercised over information flowing from the Hong Kong and Shanghai operations to the board of Golden Plus. [163] TSS’s corporate positioning was critical to his ability to conceal his fraud. From 2002 until his death in 2018, he served as the Corporate Representative of Golden Plus's investments in China. Together with ST Goh, they were the only directors of Golden Plus's Hong Kong S/N Yvwtb2AFpk50KUgpFho0w subsidiaries YIL and GCE, which in turn owned YSL and Shanghai Roxy. As the Legal Representative of YSL and Shanghai Roxy, TSS was the only person authorised to exercise all rights, perform obligations, and authorise payments on behalf of these Chinese companies. This concentration of power enabled him to control all financial transactions and information flow from these subsidiaries. [164] The evidence establishes that ST Goh took instructions from TSS and followed the narrative as set by him. According to testimony, only matters that TSS wanted reported were communicated by ST Goh to the board of Golden Plus. This selective reporting created an information asymmetry that prevented the board from discovering TSS’s fraudulent actions. [165] TSS actively misrepresented facts to maintain his deception. When the PwC special audit was conducted in 2011, TSS controlled the narrative, telling auditors that CIDL was performing in the RGP and had completed Phase 2 by June 2010. Similarly, when responding to BURSA's inquiries about Heng Fat on 26.4.2013, TSS wrote to Golden Plus falsely representing that “Heng Fat introduced a new consortium to YIL, China Idea
CIDL
(CIDL), which had better connections than Heng Fat following the changes and so was better placed to assist with the subsequent development of the Project.” These deliberate S/N Yvwtb2AFpk50KUgpFho0w misrepresentations were designed to protect his fraudulent scheme. [166] TSS and ST Goh further obscured the truth by misrepresenting to the board the status of the Addendum to the Management Agreement. They even altered the accounting treatment of receivables from the RGP through the Addendum, ensuring that profits from YSL at the Shanghai level would no longer be recognised at the Group level (Affidavit of Sajjad Akhtar/Encl. 494). This accounting manipulation further concealed the diversion of funds. [167] The defendants' argument that the board approvals of transactions involving CIDL and Heng Fat should have alerted the Plaintiffs to any irregularities fails to recognise that these approvals were obtained through TSS’s misrepresentations and non-disclosure of his interest in CIDL. Board approval based on misinformation cannot constitute constructive knowledge of fraud. The Plaintiffs have established that TSS deliberately concealed his ownership interest in CIDL, and no amount of reasonable diligence could have uncovered this concealment before the revelation in his Hong Kong Will and the subsequent Affirmation by the executrices. [168] The defendants' contention that the Plaintiffs had already formed a view of TSS’s wrongdoing before their investigation is not supported by the evidence. PW1 S/N Yvwtb2AFpk50KUgpFho0w testified that the focus of their investigation was on CIDL, the Management Agreement, and the Addendum. It was the absence of evidence supporting CIDL's involvement in the RGP, despite significant payments being made, that led to the conclusion that TSS was behind CIDL. This represents a legitimate investigative process rather than a predetermined conclusion. [169] The termination of the CIDL Management Agreement on 9.9.2020 by YIL's directors was a responsible action taken after discovering TSS’s interest in CIDL and obtaining legal advice in Hong Kong (Letter from YIL dated 9.9.2020), rather than evidence of bias as suggested by the defendants. [170] In conclusion, the Plaintiffs have established that they could not, with reasonable diligence, have discovered TSS’s fraudulent concealment before the revelations following his death. Their action, filed on 10.12.2020, falls well within the extended limitation period provided by Section 29 of the Limitation Act 1953. The defendants' limitation defence is accordingly dismissed. Application of Section 8(3) of the Civil Law Act 1956 to Claims Involving Fraudulent Concealment [171] D13, as Personal Representative of TSS’s United Kingdom Estate, submits that the action brought against the UK Estate is time-barred under Section 8(3) of the S/N Yvwtb2AFpk50KUgpFho0w Civil Law Act 1956 (“CLA”). They further contend that the estate has already been administered, and therefore the claim cannot proceed. [172] The Plaintiffs contend that their claim against the United Kingdom Estate of the late TSS is not time-barred under Section 8(3) of the CLA. They argue that Section 8(3) of the CLA only applies to representation taken out in Malaysia and not other jurisdictions. Further, they submit that the six-month limitation period under Section 8(3) only began to run after this court's order dated 18.12.2020 naming Maria as the UK personal representative for the purposes of this action. Additionally, they argue that Section 8(3) of the CLA must be read in harmony with Section 29 of the Limitation Act 1953, which provides that the limitation period for fraud does not begin to run until the fraud is discovered. [173] After careful consideration of the submissions, I find the Plaintiffs' arguments compelling. Section 8(3) of the CLA, provides that no tort proceedings that survive against a deceased person’s estate under this section may be brought unless they were already pending at the time of death or are commenced within six months after the personal representative obtains representation. It reads: “8(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased S/N Yvwtb2AFpk50KUgpFho0w person, unless proceedings against him in respect of that cause of action either— a) were pending at the date of his death; or b) are taken not later than six months after his personal representative took out representation.” [174] This must be interpreted in a manner consistent with both its purpose and other relevant statutory provisions. The limitation provision in Section 8(3) is primarily designed to ensure the prompt administration of estates rather than to shield fraudulent conduct from discovery and legal consequence. It would be contrary to public policy and the legislative intent to allow Section 8(3) to operate in a manner that prevents recovery where fraud has been concealed. [175] The authority cited by the Plaintiffs, In re Estate of John Walker, Decd. Morris Edgar v Mrs. Mary Elizabeth Judson [1953] 1 MLJ 71, supports the position that the limitation period begins to run only from the date when representation is taken out in Malaysia. The Court of Appeal held “the words ‘not later than six months after his personal representative took out representation’ must be construed as referring to representation in the Federation.” In the present case, the six-month period under Section 8(3) would only commence from 18.12.2020, when this court issued an order naming Maria as the UK personal representative for the purposes S/N Yvwtb2AFpk50KUgpFho0w of this action. The present action was instituted well within this timeframe. [176] More significantly, Section 29(1) of the Limitation Act 1953 specifically addresses actions based on fraud, providing that “when the action is based upon the fraud of the defendant or his agent... the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.” This provision recognises the inherent unfairness in allowing a limitation period to expire before the plaintiff could reasonably have discovered the cause of action. As established in the evidence before this court, the Plaintiffs only discovered TSS’s fraudulent concealment of his interest in CIDL following his death in 2018, specifically through the Affirmation Verifying Schedule of Assets and Liabilities affirmed by the executrices of TSS’s Hong Kong Will on 6.5.2019. [177] The principle that fraud unravels all and stops time running against the defrauded party is a fundamental tenet of our legal system (Lazarus Estates Ltd v Beasley). Fraud vitiates every transaction and renders it null and void. To interpret Section 8(3) of the CLA in a manner that would shield fraudulent transactions from judicial scrutiny merely because the fraudster has died would be to undermine this fundamental principle. S/N Yvwtb2AFpk50KUgpFho0w [178] A harmonious reading of Section 8(3) of the CLA with Section 29 of the Limitation Act leads to the conclusion that in cases of fraud, the six-month limitation period under Section 8(3) would only commence running from the date of discovery of the fraud, or when representation is taken out, whichever is later. Any other interpretation would lead to the absurd result that a deceased person's estate could benefit from frauds committed by the deceased, provided they remained undiscovered for six months after the grant of representation. [179] For these reasons, I find that the Plaintiffs' action against the UK Estate of TSS is not time-barred, and D13’s objection on this ground is accordingly dismissed. Andrew (4th Defendant), Yong Chooi Lan (10th Defendant) [180] From the facts of the case, defences relied on by Andrew and Yong Chooi Lan and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Which standard of proof applies for conspiracy to defraud in civil proceedings. b) Whether the termination of the Manfield Lease Agreements served as a catalyst for the alleged conspiracy. S/N Yvwtb2AFpk50KUgpFho0w c) Whether the allotment of 46,196,995 shares in Golden Plus on 26.8.2020 was fraudulently orchestrated to create an artificial majority and subvert legitimate shareholder mandates. d) Whether Andrew is liable for conversion of the 58 Titles and conspiracy to convert the 23 Titles belonging to Golden Plus's subsidiaries. e) Whether Andrew's payment of CIDL's legal fees in the Interpleader Action in the Kota Kinabalu High Court constituted a breach of his fiduciary duties to Golden Plus and evidenced his participation in the conspiracy to defraud. f) Whether the YCL Loan was artificially created and its enforcement formed part of a conspiracy to wind up GP BVI and sever Golden Plus from its Hong Kong and Shanghai subsidiaries. g) Whether the attempts to wind up Golden Plus were part of a conspiracy to subvert legitimate corporate governance and sever the Malaysian parent company from its valuable subsidiaries. h) Whether the Plaintiffs' alleged collateral purpose and unconscionable conduct precluded them from obtaining equitable relief. S/N Yvwtb2AFpk50KUgpFho0w [181] Below is my analysis based on the issues above. Standard of Proof in Conspiracy Cases [182] Andrew and Yong Chooi Lan maintain that the standard of proof for conspiracy is “beyond reasonable doubt”. They rely on the recent Court of Appeal decision in Koperasi Permodalan Felda Malaysia Bhd v Icon City Development Sdn Bhd (formerly known as 'Sierra Peninsular Development Sdn Bhd') & Anor [2023] 2 MLJ 338, where Lee Heng Cheong, JCA cited SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2011] 4 MLJ 393, which held that “as the tort of conspiracy to defraud involves an element of fraud, the standard of proof required is very high. It is proof beyond reasonable doubt.” [183] The Plaintiffs contend that the standard of proof applicable to their claims of conspiracy to defraud is the civil standard of proof on a balance of probabilities, consistent with the Federal Court decision in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1. They assert that while direct evidence of conspiracy is rare due to the secretive nature of such agreements, they have presented both substantial circumstantial evidence and direct evidence in the form of emails, WhatsApp and WeChat messages demonstrating the existence of an agreement between the Defendants with the intent to injure the Plaintiffs. These include communications S/N Yvwtb2AFpk50KUgpFho0w between Andrew, Valarie, Maria and TSH regarding the issuance and allotment of shares to Eng without consideration. The Plaintiffs further argue that Andrew and Yong Chooi Lan’s approach of addressing pieces of evidence in isolation fails to consider the evidence sequentially and holistically. [184] Having carefully considered the submissions of both parties, I find that the Plaintiffs' position on the applicable standard of proof is correct. Andrew and Yong Chooi Lan’s reliance on Koperasi Permodalan Felda Malaysia Bhd v Icon City Development Sdn Bhd. While this is indeed a recent Court of Appeal decision, it appears that the judgment may not have fully taken into account the Federal Court's authoritative guidance in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [supra]. In Sinnaiyah, the Federal Court definitively established that the standard of proof for fraud in civil proceedings in Malaysia is on the balance of probabilities, not beyond reasonable doubt. As the highest court in Malaysia, the Federal Court's ruling supersedes the Court of Appeal's decision in both SCK Group Bhd and Koperasi Permodalan Felda Malaysia Bhd. [185] The distinction is particularly significant in conspiracy cases where, as correctly pointed out by the Plaintiffs, direct evidence of agreement is rarely available. The clandestine nature of conspiracies typically necessitates that courts draw inferences from the available evidence, S/N Yvwtb2AFpk50KUgpFho0w often circumstantial, regarding the defendants' overt acts. This approach is supported by Lakatamia Shipping Co Ltd v Su [2021] EWHC 1907 (Comm), where the English High Court observed that much of the evidence is likely to be circumstantial evidence given that conspirators are very unlikely to have entered into a conspiracy in an open and documented manner, and the case is likely to be an inferential one based on the cumulative evidential picture. [186] It is also pertinent to note that in Kuwait Oil Tanker Co SAK v Al-Bader [2000] 2 All ER (Comm) 271, the Court of Appeal, per Nourse LJ, acknowledged that “it will be the rare case in which there will be evidence of the agreement itself.” This underscores the inherent difficulty in producing direct evidence of conspiracy and validates the approach of drawing inferences from overt acts. [187] In the present case, the Plaintiffs have adduced not only circumstantial evidence but also direct evidence in the form of contemporaneous communications between the alleged conspirators. The emails between Andrew, Valarie, Maria and TSH provide compelling primary evidence of coordination and common purpose. When these communications are viewed sequentially and holistically rather than in isolation, they establish on a balance of probabilities the existence of an agreement between the Defendants with the intention to injure the Plaintiffs. S/N Yvwtb2AFpk50KUgpFho0w [188] Andrew and Yong Chooi Lan’s approach of addressing pieces of evidence “in silos” is methodologically unsound in conspiracy cases. As noted in Lakatamia Shipping Co Ltd v Su, “the nature of circumstantial evidence is that its effect is cumulative, and the essence of a successful case based on circumstantial evidence is that the whole is stronger than individual parts.” Therefore, the evidence must be assessed cumulatively rather than in isolation. [189] For these reasons, I find that the applicable standard of proof in this conspiracy case is the civil standard of proof on a balance of probabilities, consistent with the Federal Court's authoritative ruling in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd. Accordingly, the Plaintiffs' contentions on this issue are accepted. Adequacy of Pleadings in Relation to Conspiracy Claims [190] Andrew and Yong Chooi Lan contend that the Plaintiffs have failed to plead which type of actionable conspiracy - lawful or unlawful means - is being relied upon in relation to the YCL Loan, attempts to take possession of the 23 Titles, and attempts to wind up Golden Plus. They rely on the High Court decision in Pacific & Orient Insurance Co Bhd v Mohammad Hafizi bin Bahari & Anor [2023] MLJ 933 to argue that pleadings must expressly state which type of conspiracy is being relied upon. The Defendants also assert that the Plaintiffs have inappropriately grouped the Defendants together without identifying S/N Yvwtb2AFpk50KUgpFho0w which Defendant committed which wrong, and without adequately demonstrating an agreement between Andrew, Yong Chooi Lan, and other alleged co-conspirators. As an example, Andrew argues that the plea against him for financing litigation on behalf of Golden Plus for collateral purpose is lacking in particulars, noting that OS 354 was not pleaded in the SOC. [191] The Plaintiffs contend that their pleadings adequately set out the elements of conspiracy against Andrew, and Yong Chooi Lan. They assert that it is crystal clear from the pleaded case that they are relying on unlawful means conspiracy regarding the artificial creation and enforcement of the YCL Loan, attempts to take possession of the 23 Titles, and efforts to wind up Golden Plus. The Plaintiffs argue that their SOC specifically pleads the overt acts committed by Andrew and Yong Chooi Lan which led to the common purpose of conspiracy. They point to paragraphs 51, 59, 61, 62, 64, and 65 of the SOC regarding Andrew, and paragraphs 47(v), 51, and 64(iii) regarding Yong Chooi Lan. The Plaintiffs further submit that evidence led at trial without objection from the Defendants has cured any alleged defects in pleading, and that the Defendants were not caught by surprise as to the case they had to meet. S/N Yvwtb2AFpk50KUgpFho0w [192] Having considered the submissions of both parties, I find that the Plaintiffs' pleadings are sufficient to establish the claim of conspiracy against Andrew and Yong Chooi Lan. While the pleadings may not expressly state “unlawful means conspiracy” in those precise words, the nature of the conspiracy alleged is abundantly clear from the factual matrix and particulars provided. The pleaded case describes a series of unlawful acts perpetrated by the Defendants with the common purpose of siphoning money from the Gplus Group and preserving the proceeds of fraud in TSS’s estate. This is evident from paragraph 51 of the SOC where it is alleged that “to protect these interests and continue perpetuating the fraud on the Gplus Group by continuing to siphon out the proceeds from the RGP through CIDL, Andrew, Valarie, Maria, TSH, ST Goh, Yong Chooi Lan, Pacific Victor, CIDL, GQ Huang, GY Huang and/or Fai Fong conspired to, and purported to enable Andrew, Valarie, TSH and/or their nominees to take control of Golden Plus and its subsidiaries.” [193] The decision in Pacific & Orient Insurance Co Bhd relied upon by the Defendants does not establish that a pleading must state in express terms which type of conspiracy is being relied upon. Rather, the pleading must sufficiently identify the factual basis of the conspiracy alleged, which has been done in this case. The particulars pleaded in the SOC clearly point to unlawful acts - artificial creation of debt, fraudulent S/N Yvwtb2AFpk50KUgpFho0w enforcement of the YCL Loan, attempted conversion of titles, and attempts to wind up Golden Plus - all aimed at injuring the Plaintiffs. [194] Furthermore, the Supreme Court in Superintendent of Lands and Surveys (4th Div) & Anor v Hamit bin Matusin & Ors [1994] 3 MLJ 185 held that “evidence, when given without any objection by the opposing party, will further have the effect of curing the absence of such plea in the relevant pleading, in other words, the effect of overcoming such defect in such pleading.” This principle was earlier articulated by the Federal Court in Ang Koon Kau & Anor v Lau Piang Ngong [1984] 2 MLJ 271, where it was stated that “evidence given at the trial can therefore in appropriate circumstances overcome defects in the pleadings where the net result of such evidence is to prevent the other side from being taken by surprise.” [195] In the present case, the Defendants raised no objection at trial to evidence being led to prove unlawful means conspiracy. The evidence presented - including contemporaneous emails, WhatsApp messages, and witness testimony - went directly to establishing the elements of unlawful means conspiracy. For instance, Andrew's complaint that OS 354 was not specifically mentioned in the SOC rings hollow when one considers that it was explicitly pleaded in the Plaintiffs' Reply to Andrew and Yong Chooi Lan's Defence at paragraphs 4- 13, and evidence was led through PW1 Wong Koon Wai S/N Yvwtb2AFpk50KUgpFho0w regarding Andrew's financing of this litigation for collateral purposes. [196] The nature of conspiracy is such that direct evidence of agreement is rarely available. As observed in Kuwait Oil Tanker, direct evidence of the agreement itself is rarely available. The court must scrutinise the overt acts to infer the existence of conspiracy. Here, the pleadings adequately set out the overt acts attributed to each Defendant, providing a sufficient foundation for the court to infer the existence of a conspiracy. Paragraph 51 of the SOC establishes the common purpose - to perpetuate fraud on the Gplus Group - while subsequent paragraphs detail the specific acts performed by each Defendant in furtherance of this purpose. [197] The allegation that the Plaintiffs have improperly grouped the Defendants together fails to appreciate the nature of conspiracy claims. Conspirators rarely act simultaneously; rather, they perform different acts at different times in service of a common aim. Kuwait Oil Tanker established that “it is not necessary for the conspirators all to join the conspiracy at the same time, but the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of.” The pleadings sufficiently establish that Andrew and Yong Chooi Lan were aware of the surrounding circumstances and shared S/N Yvwtb2AFpk50KUgpFho0w the common object of perpetuating the fraud on the Gplus Group. [198] In conclusion, I find that the Plaintiffs' pleadings adequately set out the claim of conspiracy against Andrew and Yong Chooi Lan. Any technical deficiencies in the pleadings have been cured by the evidence led at trial without objection. They were not caught by surprise as to the case they had to meet, and their objections to the adequacy of the pleadings, raised after the close of evidence, are too late in the day and without merit. The Termination of the Manfield Lease Agreements as a Catalyst for Conspiracy [199] Andrew and Yong Chooi Lan submit that the termination of the Manfield Lease Agreements was not a triggering event for the alleged conspiracy. They point to the letter from GCE dated 25.3.2019 signed by Jason Teo, which sought authorisation to terminate the agreements based on contractual breaches by Manfield, rather than because the agreements were a sham or because TSS was behind Manfield. They further argue that the Manfield Lease Agreements were mutually terminated when TSH and ST Goh were still in control, and that if they were conspiring to protect the interests of TSS’s estate's beneficiaries, they would not have consented to the termination since it would be detrimental to those interests. In essence, they assert there was a six-month S/N Yvwtb2AFpk50KUgpFho0w gap between the issuance of GCE’s solicitors Messrs Gallants' letter threatening termination and Andrew's eventual appointment as director on 29.6.2019, suggesting no causal connection between these events. [200] The Plaintiffs contend that the termination of the Manfield Lease Agreements in June 2019 was a pivotal event that triggered the conspiracy in the Second Period. They assert that this termination posed a direct threat to the estate of TSS in the CIDL Management Agreement, potentially disrupting the continuous flow of funds to beneficiaries of TSS’s estate. According to the Plaintiffs Andrew himself conceded during cross-examination that he, Maria, Valarie, and ST Goh were aware that when GCE terminated the Manfield Lease Agreements, there was a risk that YIL would also terminate the CIDL Management Agreement, thereby cutting off financial benefits to the beneficiaries of TSS’s estate. The Plaintiffs further argue that TSH and ST Goh were reluctant facilitators of the termination who delayed the process and only agreed upon Jason Teo's insistence, and that this termination directly led to the surreptitious appointment of Andrew to the board of Golden Plus and other conspiratorial acts intended to maintain control of the Gplus Group. [201] Having carefully weighed the evidence before me, I find the Plaintiffs' contentions persuasive. It is immaterial whether GCE's stated basis for terminating the Manfield S/N Yvwtb2AFpk50KUgpFho0w Lease Agreements was for breaches of contract rather than because they were shams. What is significant is the effect of this termination on the interests of TSS’s estate and its beneficiaries, and the actions taken by Andrew and Yong Chooi Lan in response. The contemporaneous evidence clearly establishes that the termination posed a threat to the continuation of the fraudulent schemes that had been operating during TSS’s lifetime, particularly the CIDL Management Agreement, which YIL under Jason Teo's leadership eventually terminated on 9.9.2020. [202] Andrew’s own testimony during cross-examination is particularly damning. Andrew unequivocally agreed that the effect of terminating the Manfield Lease Agreements was that Maria, Yong Chooi Lan, and ST Goh would no longer benefit financially from these agreements, and that the revenue and profits would instead flow back up to Golden Plus in Malaysia. He further confirmed his previous testimony in the BVI proceedings that he, Maria, Valarie, and ST Goh all knew when Jason terminated the Manfield Lease Agreements that there was a risk Jason would also cause the termination of the Management Agreement, resulting in the beneficiaries being unable to benefit from these agreements. This admission is crucial as it establishes both knowledge and motive for the subsequent conspiratorial acts. S/N Yvwtb2AFpk50KUgpFho0w [203] Andrew and Yong Chooi Lan’s portrayal of TSH and ST Goh as benevolent actors who willingly facilitated the termination is contradicted by contemporaneous documentary evidence. The affidavit in reply affirmed by Jason Teo on 3.9.2019 in OS 354 and TSH's own affidavit in reply affirmed on 18.9.2019 reveal that TSH and ST Goh were reluctant participants in the termination process. Jason Teo's affidavit states that TSH and ST Goh visited Shanghai on 17.5.2019 upon his request to discuss the proposed termination, while TSH's affidavit acknowledges that Jason “was upset with my questioning his decision to terminate agreement with Manfield and having to engage Tann & Tann Legal, a legal firm in Kota Kinabalu, for a legal opinion on the proposed termination.” The fact that TSH and ST Goh sought legal advice from solicitors in Kota Kinabalu for agreements governed by Hong Kong law between Hong Kong entities strongly suggests delaying tactics rather than genuine concern for proper procedure. [204] The response to this termination is equally telling. Rather than accepting the legitimate termination of agreements that were evidently not benefiting Golden Plus, TSH and ST Goh approached Andrew to plot the surreptitious removal of Jason Teo and the appointment of Andrew as Golden Plus’s Corporate Representative for its China operations. This was premised on alleged improprieties by Jason Teo that were later admitted to be false and S/N Yvwtb2AFpk50KUgpFho0w dismissed by both the High Court and Court of Appeal, as evidenced by Andrew's own Witness Statement. [205] Andrew and Yong Chooi Lan' assertion that there was no surreptitious appointment due to a six-month gap between the threatening letter from Messrs Gallants and Andrew's eventual appointment ignores the critical meeting in Shanghai on 17.5.2019 and the subsequent rapid developments. The truly surreptitious nature of Andrew's appointment lies in its timing and manner: it occurred on 29.6.2019, just one day after the Annual General Meeting of Golden Plus, during which neither the alleged misconduct of Jason Teo nor Andrew's imminent appointment was raised or discussed. This timing cannot be coincidental and appears deliberately calculated to circumvent proper shareholder scrutiny, effectively denying shareholders the opportunity to vote on his appointment. [206] Most significantly, even before the Annual General Meeting and Andrew's formal appointment, he and TSH had already engaged solicitors for Golden Plus to initiate various litigations against Jason Teo. These solicitors were also engaged to provide legal representation to Andrew, Maria, and Valarie in their personal capacities at Golden Plus’s expense. These preemptive actions demonstrate a coordinated effort to mount collateral attacks against Jason Teo, preserving Andrew and TSH's control over Golden Plus to perpetuate the fraudulent S/N Yvwtb2AFpk50KUgpFho0w arrangements embodied in the Manfield and CIDL agreements. [207] In conclusion, the evidence establishes a clear causal nexus between the termination of the Manfield Lease Agreements and the subsequent conspiratorial actions of Andrew and Yong Chooi Lan. The termination threatened the financial interests of TSS’s estate's beneficiaries, including Andrew, and precipitated a series of actions designed to seize and maintain control of Golden Plus and its subsidiaries. These actions were undertaken with the common purpose of preserving and perpetuating the fraudulent schemes initiated during TSS’s lifetime, to the detriment of Golden Plus and its legitimate shareholders. Fraudulent Allotment of Shares to Create an Artificial Majority and Subvert Legitimate Shareholder Mandates [208] The Plaintiffs contend that the Andrew conspired with Maria, Valarie, TSH, CIDL, and Huang to fraudulently issue and allot 46,196,995 shares in Golden Plus on 26.8.2020, purportedly to settle a debt owed to CIDL under the GPlus Loan. The Plaintiffs argue this was a deceptive scheme designed to create an artificial majority that would allow Andrew and his associates to regain control of Golden Plus after the High Court was scheduled to deliver its decision on 28.8.2020 regarding the validity of resolutions in OS 153. The Plaintiffs rely on contemporaneous emails and WhatsApp communications S/N Yvwtb2AFpk50KUgpFho0w between the conspirators, which they claim explicitly reveal the true purpose of the allotment - to benefit Andrew and Valarie personally rather than to settle any genuine corporate debt. Central to their case is evidence showing the suspicious timing of the share allotment; the fact that CIDL had made no demand for repayment since 2017; and emails between Andrew, Valarie, and Maria discussing how to split the “Advance” between themselves despite no actual payment being made to [209] Andrew and Yong Chooi Lan deny any wrongdoing, portraying the allotment as a legitimate and genuine effort by the incumbent board to settle the purported debt owed to CIDL under the GPlus Loan. They assert that certain actions taken were merely to protect or advance their self-interest and are therefore not actionable. They further claim that the Plaintiffs' allegation that Duwee and Peng were Andrew and Valarie's nominees is mere conjecture and unproven, suggesting that the Plaintiffs' failure to call Duwee and Peng as witnesses warrants an adverse inference against the Plaintiffs. They submit there was no agreement or meeting of minds between Andrew, Valarie, Maria, TSH, CIDL, and Huang regarding any scheme for the allotment and no intention to injure the Plaintiffs. [210] Having carefully examined the evidence, I find the Plaintiffs' case compelling. The sequence of events and the timing of the share allotment reveals a calculated S/N Yvwtb2AFpk50KUgpFho0w effort to subvert legitimate shareholder mandates. It is significant that there had been no demand for repayment of the GPlus Loan by CIDL since 2017 until this sudden urgency to settle the debt emerged just before the High Court was due to deliver its decision on 28.8.2020 concerning the validity of resolutions removing Andrew and his associates from the Board in OS 131. As admitted by TSH, there was no pressure from CIDL to repay this purported debt for nearly three years, yet it suddenly became imperative to address it via share allotment in August 2020. [211] The contemporaneous emails between Andrew, Maria, Valarie, and TSH on 19.8.2020, 25.8.2020, and 26.8.2020 are particularly damning. These communications explicitly detail their plan for the issuance and allotment of Golden Plus shares to Eng, and a subsequent transfer of those shares. Most telling is Maria's advice that CIDL could confirm receipt of the “Advance” (the amount purportedly owing by Golden Plus to CIDL) even though no payment would actually be received. This alone negates any genuine debt settlement purpose behind the share allotment. [212] Furthermore, these conspirators discussed transferring the impugned shares from Eng to a third party “B holder” in anticipation of legal challenges to the allotment. Andrew unequivocally stated that the sale and purchase agreement with this “B holder” would contain a security S/N Yvwtb2AFpk50KUgpFho0w clause resulting in the transfer of the impugned shares to CIDL should the “B holder” fail to pay the Advance. Valarie raised concerns about ensuring Eng would sell the 46,196,995 shares “to Andrew and Valarie” at RM0.20 per share, and proposed an equal split of the Advance between herself and Andrew. Andrew agreed to this proposal, acknowledging they would both bear the dilution of “our entitled value of shares.” This statement clearly reveals the personal interest Andrew and Valarie had in this transaction and contradicts any claim that the share allotment was primarily for legitimate corporate purposes. [213] The subsequent events followed the plan outlined in these emails with remarkable precision. CIDL confirmed receipt of the Advance on 26.8.2020 despite receiving no payment, the shares were allotted to Eng on 26.8.2020, and then transferred to Duwee on 1.9.2020. Most significantly, the Settlement Agreement between CIDL, Eng, and Golden Plus executed on 25.8.2020 specifically required the shares to be allotted to Eng by 28.8.2020 - the very date the High Court was scheduled to deliver its decision on the validity of resolutions removing Andrew and his associates from the board in the Adjourned EGM Actions. [214] I find it particularly telling that immediately after the High Court's decision on 28.8.2020 and the transfer of shares from Eng to Duwee, Duwee and Peng issued a notice of S/N Yvwtb2AFpk50KUgpFho0w EGM on 8.9.2020 seeking to reconstitute the board of Golden Plus, replacing the newly appointed board with themselves. The WhatsApp messages between Andrew and TSH on 16.9.2020 and 17.9.2020 further demonstrate Andrew's continued involvement in this scheme, arranging for TSH to appoint solicitors to file an application to restrain Duwee and Peng's EGM in Kuala Lumpur High Court Originating Summons No. WA- 24NCC-432-09/2020 (“OS 432”) and even financing TSH's legal fees for those proceedings. [215] The principle established in Kuwait Oil Tanker Co, is particularly relevant here: conspiracy may be inferred from overt acts adapted to a common unlawful purpose. The coordinated actions of Andrew, Valarie, Maria, TSH, CIDL, and Huang - from planning the allotment to executing the share transfer and subsequent EGM notice - clearly demonstrate a common purpose to subvert legitimate shareholder mandates through fraudulent means. [216] I do not accept the Defendants' argument that the Plaintiffs' failure to call Duwee and Peng as witnesses warrants an adverse inference. The documentary evidence - particularly the emails and WhatsApp communications - is sufficiently compelling to establish the fraudulent nature of the share allotment without requiring testimony from these individuals. If Andrew and Yong Chooi Lan deemed the testimony of these S/N Yvwtb2AFpk50KUgpFho0w individuals necessary to their defence, they were at liberty to call them as witnesses, given their obvious familiarity with these parties. [217] In conclusion, I find that Andrew, in concert with other defendants, fraudulently orchestrated the issuance and allotment of 46,196,995 shares in Golden Plus without genuine consideration, with the intention of creating an artificial majority to subvert legitimate shareholder mandates. This constitutes a breach of fiduciary duties and evidences participation in a conspiracy to defraud Golden Plus, for which Andrew must be held liable. Conversion of and Conspiracy to Take Possession of Land Titles [218] The Plaintiffs contend that the Andrew, conspired with others, including TSH, CIDL, Huang, and Fai Fong to take possession of and/or convert two sets of land titles belonging to Golden Plus’s subsidiaries: the “23 Titles” related to the Interpleader Action and the “58 Titles” given to Andrew by Fai Fong in mid-August 2020. Regarding the 23 Titles, the Plaintiffs argue that there was a clear “meeting of minds” or consensus among the conspirators to secure the release of these titles from Messrs Yap & Chin, who were holding them as stakeholders arising from the GPlus Loan. For the 58 Titles, the Plaintiffs maintain that although they are no longer pursuing a mandatory injunction for their return, Andrew's assertion S/N Yvwtb2AFpk50KUgpFho0w that he returned them lacks credibility, as evidenced by the Plaintiffs' need to apply for replacement titles - a process they would not have undertaken if the originals were indeed in Sri Serdang's possession as claimed. [219] Andrew and Yong Chooi Lan argue that Andrew did not at all material times have possession of the 23 Titles, making it impossible for him to have converted them. For the 58 Titles, Andrew relies on Sri Serdang's letter dated 21.10.2020 to infer that the 58 Titles were still in Sri Serdang's possession at that time, suggesting he had returned them as claimed. This, in their view, undermines the Plaintiffs' claim for conversion of these titles. [220] Having carefully considered the evidence before me, I find the Plaintiffs' contentions persuasive. Regarding the 23 Titles, the law of conspiracy does not require that each conspirator personally possess the property in question. It is sufficient that there was concerted action toward a common unlawful purpose. The documentary evidence in Paragraphs 304 to 319 and 396 to 401 of the Plaintiffs' Submissions demonstrates a clear consensus between Andrew, TSH, CIDL, Huang, and Fai Fong to secure the release of the 23 Titles from Messrs Yap & Chin. They informed Messrs Yap & Chin that the GPlus Loan granted by CIDL had been resolved between parties, prompting the stakeholders, who were suspicious of conflicting instructions, to file an Interpleader Action at the Kota Kinabalu High Court on 17.8.2020. S/N Yvwtb2AFpk50KUgpFho0w [221] The timing of this attempted release-just before the High Court's decision on 28.8.2020 in the Adjourned EGM Actions (OS 153 and OS 131) validating the removal of Andrew and his faction from Golden Plus’s board - strongly suggests it was part of the broader conspiracy to secure control over Golden Plus’s assets. The principle established in Kuwait Oil Tanker Co SAK v Al-Bader, as articulated by Nourse LJ in the Court of Appeal, is apposite: conspirators need not join the conspiracy at the same time, but the parties must be sufficiently aware of the surrounding circumstances and share the same object for it to be properly said they were acting in concert. The evidence demonstrates this shared objective among the conspirators. [222] Regarding the 58 Titles, I find that Andrew's reliance on Sri Serdang's letter dated 21.10.2020 to suggest the titles remained in Sri Serdang's possession is speculative and without merit. As the Plaintiffs correctly point out, there would have been no reason for them to incur the expense and administrative burden of applying for replacement titles if the originals were indeed in Sri Serdang's possession. Andrew's assertion that he returned the titles lacks supporting evidence and is contradicted by the Plaintiffs' subsequent need to obtain replacements. [223] The fact that Andrew received the 58 Titles from Fai Fong just two weeks before the High Court was scheduled to deliver its decision in the Adjourned EGM Actions further S/N Yvwtb2AFpk50KUgpFho0w suggests this was part of the broader conspiracy to secure control of Golden Plus’s assets. This timing aligns with other actions taken by Andrew and his co-conspirators, including the fraudulent share allotment and the manoeuvres regarding the 23 Titles involved in the Interpleader Action. These coordinated actions demonstrate a concerted effort to secure control over Golden Plus’s assets in anticipation of potentially losing control of the company following the court's decision. [224] In conclusion, I find that Andrew is liable for conversion of the 58 Titles and for conspiracy to convert the 23 Titles. His actions formed part of the broader conspiracy to defraud Golden Plus and secure control of its assets. The evidence, when viewed holistically as required in conspiracy cases per Lakatamia, establishes this conspiracy on the balance of probabilities, the applicable standard as confirmed by the Federal Court in Sinnaiyah. Payment of CIDL's Legal Fees in the Interpleader Action as Evidence of Breach of Fiduciary Duty and Conspiracy [225] The Plaintiffs contend that Andrew breached his fiduciary duties to Golden Plus by paying CIDL's legal fees in the Interpleader Action to CIDL's solicitors, Messrs Wee Choo Keong & Faaiz, despite CIDL being an adversary of Golden Plus and Sri Serdang in that proceeding. The Plaintiffs assert that this payment, which Andrew subsequently attempted to claim as an “advance” from S/N Yvwtb2AFpk50KUgpFho0w him to Golden Plus, is compelling evidence that Andrew was one of the directing minds of CIDL, arranged for CIDL and Huang's legal representation in Malaysia, and prioritised his and CIDL's interests over Golden Plus when conflicts arose. They further argue that this corroborates Paragraph 19 of Huang's Statutory Declaration regarding Andrew arranging CIDL's legal representation in Malaysia and demonstrates Andrew's propensity to abuse his fiduciary position in Golden Plus. [226] Andrew admits to paying CIDL's legal fees in the Interpleader Action but seeks to justify this payment by asserting that CIDL, Sri Serdang, and Golden Plus were working toward a common goal of having the 23 Titles released to settle the GPlus Loan. He submits that he was not only doing what he was authorised to do by CIDL (pursuant to a Power of Attorney executed by Huang in his favour) but was also acting in Golden Plus’s best interest. While Andrew acknowledges that he did not eventually include his payment to Messrs Wee Choo Keong & Faaiz in his letter of demand to Golden Plus dated 4.12.2020, he maintains that the payment was proper. [227] Having carefully considered the submissions of both parties, I find the Plaintiffs' position to be compelling. The evidence clearly establishes that CIDL took a position diametrically opposed to Golden Plus and Sri Serdang in the Interpleader Action. Despite having issued a letter on S/N Yvwtb2AFpk50KUgpFho0w
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26.8.2020 confirming that the GPlus Loan had been settled, CIDL sought to deny Sri Serdang possession of the 23 Titles in the same action. This contradiction alone undercuts Andrew's assertion that all parties were working toward a common goal. [228] The fact that Andrew, as a director of Golden Plus and Sri Serdang at the material time, funded the litigation expenses of an adversary in a proceeding against the very companies to which he owed fiduciary duties constitutes a clear breach of those duties. This is particularly egregious given that Andrew attempted to characterise these payments as “advances” due from Golden Plus to him, as evidenced in the list prepared by Fai Fong of the “Amount due to ANDREW TEH WEI KIAN” in Item 5. In effect, Andrew sought to render Golden Plus liable for litigation expenses that were directly contrary to its interests. [229] This conduct aligns with the broader pattern of behavior exhibited by Andrew throughout the Second Period, where he consistently acted to advance interests contrary to those of Golden Plus and its legitimate shareholders. The principle established in Kuwait Oil Tanker Co SAK v Al-Bader, is relevant: conspiracy may be inferred from overt acts adapted to a common unlawful purpose. Andrew's financing of CIDL's litigation against Golden Plus, when viewed alongside his involvement in the fraudulent share allotment and the YCL Loan scheme, S/N Yvwtb2AFpk50KUgpFho0w demonstrates a consistent pattern of conduct directed toward undermining Golden Plus’s legitimate governance for personal gain. [230] Particularly telling is Paragraph 19 of Huang's Statutory Declaration, which states: “After TSS’s demise, the legal services and/or legal representation provided to CIDL and I in Malaysia were organised by Andrew Teh Wei Kian. I did not personally pay for such legal services and/or representation.” This admission from a co-defendant directly implicates Andrew as a controlling mind behind CIDL's legal actions in Malaysia, corroborating the Plaintiffs' contention that CIDL was being utilised as a vehicle to advance the interests of Andrew and his co-conspirators. [231] The timing of these payments, coming shortly before and after the High Court's decision on 28.8.2020 in the Adjourned EGM Actions validating the removal of Andrew and his faction from Golden Plus's board, further suggests they were part of a coordinated effort to secure control over Golden Plus’s assets in anticipation of losing control of the company. This timing aligns with other actions taken by Andrew and his co-conspirators during this period, including the fraudulent share allotment and the manouvres regarding the YCL Loan. S/N Yvwtb2AFpk50KUgpFho0w [232] In conclusion, I find that Andrew's payment of CIDL's legal fees in the Interpleader Action, coupled with his attempt to claim these payments as advances due from Golden Plus, constitutes a clear breach of his fiduciary duties and evidences his participation in the conspiracy to defraud Golden Plus. This conduct caused significant financial harm to Golden Plus by forcing it to defend against litigation that he himself was funding. This demonstrates a flagrant disregard for his duties as a director and confirms his role in the broader conspiracy to defraud the Gplus Group. Artificial Creation and Enforcement of the YCL Loan as a Vehicle to Wind Up GP BVI and Sever Golden Plus from its Hong Kong and Shanghai Subsidiaries [233] The Plaintiffs contend that the YCL Loan was artificially created during the First Period by TSS and subsequently weaponised by Andrew and Yong Chooi Lan during the Second Period as part of a broader conspiracy to sever Golden Plus from its valuable Hong Kong and Shanghai subsidiaries. According to the Plaintiffs, the conspirators sought to accomplish this by winding up GP BVI for purportedly failing to repay the USD3 million loan. The Plaintiffs argue that Yong Chooi Lan played a significant role by issuing a statutory demand against GP BVI and applying for its winding up in the BVI, while Andrew orchestrated the entire scheme with the assistance of TSH, ST Goh, and Krishna Kumar. The Plaintiffs point to S/N Yvwtb2AFpk50KUgpFho0w the suspicious timing of Yong Chooi Lan's enforcement action (on 9.10.2020) - occurring one day after the High Court granted an injunction restraining the EGM called by Duwee and Peng (on 8.10.2020) in OS 432 - and highlight a recorded conversation between TSH and Krishna Kumar which explicitly details the plan to “take control” of the Hong Kong and Shanghai subsidiaries by winding up GP BVI. The Plaintiffs further note that Andrew failed to produce documents regarding his appointment of the BVI lawyers acting for Yong Chooi Lan in the winding-up proceedings despite explicit requests to do so. [234] Andrew and Yong Chooi Lan deny involvement in any conspiracy. Yong Chooi Lan claims she did not understand what she was signing in relation to the YCL Loan Agreement and only discovered the loan documentation in her house safe towards the end of
2020
She distances herself from the enforcement of the YCL Loan by suggesting she was merely acting on legal advice after discovering the documents. They argue that since the winding up of GP BVI never materialised, the Plaintiffs suffered no damage and therefore their claim for conspiracy is not actionable. They also challenge the Plaintiffs for not calling Krishna Kumar as a witness, suggesting that an adverse inference should be drawn from this omission. Additionally, they argue that there are contradictions in the Plaintiffs' case about the creation of the YCL Loan, and that the Plaintiffs failed to properly S/N Yvwtb2AFpk50KUgpFho0w plead their claim for damages in respect of legal costs incurred in defending the BVI proceedings. [235] Having carefully considered the evidence and submissions, I find that the YCL Loan was indeed artificial and its enforcement formed part of a coordinated conspiracy to defraud the Plaintiffs. Several factors lead me to this conclusion. First, the loan was never recorded in the accounts of Golden Plus or GP BVI. TSH, the director primarily responsible for financial management of Golden Plus, admitted under cross-examination that a genuine USD3 million loan would have been recorded in the company's accounts. This admission by a co-conspirator is particularly significant given his position and responsibilities. Furthermore, Yong Chooi Lan has failed to explain the source of the USD3 million she allegedly advanced, which is implausible given her modest financial standing. [236] The loan agreement itself contains fundamental inconsistencies - for instance, Clause 1.1 refers to Golden Plus as the “Principal Borrower” but nowhere in the agreement is Golden Plus mentioned as having the principal obligation to repay the loan. [237] The loan agreement itself contains numerous internal inconsistencies and structural flaws that undermine its credibility. Dated 15.3.2008, the document establishes a peculiar arrangement between GP BVI and Yong Chooi S/N Yvwtb2AFpk50KUgpFho0w Lan without including Golden Plus as a party, despite Golden Plus being the purported ultimate beneficiary of the funds. This fundamental misalignment creates confusion from the outset, as the agreement designates GP BVI as the “Borrower” while simultaneously suggesting in its recitals that the actual recipient of the USD3 million was Golden Plus. [238] The agreement's internal contradictions become more apparent when examining specific provisions. Recital 3 indicates that GP BVI provides security for repayment through an undertaking on behalf of Golden Plus, positioning GP BVI as a guarantor rather than the primary borrower. However, Clause 1.1 directly contradicts this by suggesting Yong Chooi Lan granted the funds to GP BVI itself. Adding further confusion, Clause 2.1 makes GP BVI responsible for repayment, while Clause 3.3 introduces an undefined “Company” that is supposed to repay the loan “on the Borrower” in the event of default. This ambiguous reference to “Company” introduces a third entity that is not properly defined anywhere in the document. [239] The YCL Loan Agreement lacks the clarity and precision typically expected in a legitimate financial transaction of this magnitude. A proper loan arrangement involving multiple entities would normally include a tripartite agreement or a comprehensive set of documents clearly delineating the relationships, rights, and obligations of all S/N Yvwtb2AFpk50KUgpFho0w parties. Instead, this document presents a convoluted structure where the roles of borrower, beneficiary, and guarantor are confused and overlapping. These internal contradictions, coupled with the absence of Golden Plus as a formal party despite being the alleged recipient of the funds, strongly suggest the loan document was hastily drafted and not intended to function as a genuine financial instrument but rather created for some ulterior purpose. [240] The timing of Yong Chooi Lan's statutory demand against GP BVI on 9.10.2020 is particularly revealing. It was issued precisely one day after the High Court granted an injunction restraining an EGM called by Duwee and Peng to reconstitute the board of Golden Plus in OS 432. This temporal proximity strongly suggests it was part of a coordinated response to the failure of the conspirators' previous attempt to regain control of Golden Plus through the fraudulent share allotment scheme. In Yap Sau Choon@Yap Bee Yong & Anor v Cheong Hong Mun & Ors [2016] MLJU 1203 (HC), the court emphasised that the burden of proof in civil fraud cases is met on the balance of probabilities, and it is within the court's discretion to draw inferences from the overall evidence presented. [241] Most damning is the video recording of the conversation between TSH and Krishna Kumar on 25.6.2020, which explicitly outlines the conspirators' strategy in the “Hong S/N Yvwtb2AFpk50KUgpFho0w Kong Great plan”. Kumar stated they would backdate all documents to 2007, 2008 - precisely the time period of the YCL Loan Agreement dated 15.3.2008. He further detailed how they would obtain a liquidation order in the BVI and gain control within 3-4 months, after which Andrew would be appointed across the board of directors. Krishna Kumar specifically mentioned that he needed to see Andrew to “confirm he's okay with this whole thing,” directly implicating him in the conspiracy. The plan included appointing a liquidator who would then place Andrew in control of the Hong Kong and Shanghai subsidiaries, effectively severing them from Golden Plus in Malaysia. [242] TSH's subsequent WhatsApp message to Andrew reporting on “very constructive updates by Kumar about BVI receivership” further connects Andrew to this conspiracy. When cross-examined about this message, TSH admitted it referred to the winding-up proceedings commenced by Yong Chooi Lan in the BVI, establishing the link between [243] Yong Chooi Lan's defence that she did not understand the YCL Loan Agreement lacks credibility. As the court noted in Kuwait Oil Tanker Co SAK v Al-Bader, “If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will S/N Yvwtb2AFpk50KUgpFho0w suffer them.” Even if Yong Chooi Lan did not fully comprehend the loan document, she clearly understood she was taking action to wind up GP BVI, which would harm Golden Plus. Her contradictory statements further undermine her credibility - in her affidavit in the BVI proceedings, she claimed to have made previous attempts to demand repayment, while before this court she claimed to have only discovered the loan documents in late 2020. [244] I find Andrew's involvement in this scheme equally clear. Despite explicit requests via an email from Messrs. Tommy Thomas to Messrs Skrine dated 10.5.2023 (Exhibit P7) to produce documents relating to his appointment of BVI lawyers for Yong Chooi Lan in the winding-up proceedings, Andrew failed to do so, offering unconvincing excuses about Gmail access difficulties from China (NOP 7/1902-1903). The adverse inference I draw is that these documents would have revealed his orchestration of the BVI proceedings, as suggested by Krishna Kumar's recorded statement that “BVI also I use someone else to do the whole thing for me... I use a foreign lawyer... I have someone there.” [245] Andrew and Yong Chooi Lan’s argument that the claim is not actionable because the winding up of GP BVI did not materialise is without merit. As established in Li Siu Lun v Looi Kok Poh and another [2015] SGHC 149, in conspiracy cases “damages are at large and the court is S/N Yvwtb2AFpk50KUgpFho0w not over-concerned to require the plaintiff to prove precise quantification of its losses.” The Plaintiffs incurred legal costs defending the BVI proceedings, which constitute actual damage. Moreover, the law of conspiracy does not require that every aspect of the conspiracy be successful - what matters is that there was concerted action taken pursuant to an agreement which caused damage to the Plaintiffs. [246] In conclusion, the evidence overwhelmingly establishes that the YCL Loan was a sham transaction deliberately deployed by Andrew and Yong Chooi Lan, in concert with other conspirators, to destabilise GP BVI and sever Golden Plus’s Hong Kong and Shanghai subsidiaries from their Malaysian parent company. This constituted an unlawful means conspiracy for which both Defendants must be held liable. Conspiracy to Wind Up Golden Plus to Subvert Legitimate Corporate Governance and Sever the Malaysian Parent Company from its Valuable Subsidiaries [247] The Plaintiffs contend that the efforts of the 4th Defendant, Andrew, and other conspirators to wind up Golden Plus were part of their broader conspiracy to sever the Hong Kong and Shanghai subsidiaries from the Malaysian parent company, thereby gaining unfettered access to the valuable assets in those subsidiaries. The Plaintiffs argue that Andrew was an active participant in S/N Yvwtb2AFpk50KUgpFho0w these schemes, not merely a “passive recipient” of communications as he claims. They point specifically to an email exchange dated 16.4.2020 where Andrew unequivocally agreed to TSH's suggestion to “focus on the HK plan in order to take over China” and “do something to caveat the balance of the 58 lots [of land] and wind up Gplus.” The Plaintiffs emphasise that in all communications regarding plans to wind up Golden Plus, Andrew never expressed any protest or raised concerns about the potential harm such actions would cause to Golden Plus or its subsidiaries, reflecting his acquiescence to and participation in these schemes. [248] Andrew and Yong Chooi Lan seek to justify their attempts to wind up Golden Plus and its subsidiaries as efforts to achieve the “greater good” goal of protecting Golden Plus from Jason Teo's alleged wrongdoings. They characterise Andrew as a “passive participant” or “silent recipient” of the various emails revealing the plans to wind up Golden Plus and its subsidiaries, attempting to distance him from active involvement in these schemes. They suggest that these actions were taken based on advice from various solicitors, consultants, and TSH. [249] Having carefully considered the evidence before me, I find the Plaintiffs' position to be well-founded. The email exchange of 16.4.2020 between Andrew and TSH is particularly damning. In response to TSH's explicit proposal to “focus on the HK plan in order to take over S/N Yvwtb2AFpk50KUgpFho0w China” and “do something to caveat the balance of 58 lots and wind up Gplus,” Andrew's reply - “Yes, we must rely on Lawrence and customs now” - clearly indicates his agreement with and participation in this scheme. This exchange cannot reasonably be characterised as passive receipt of information; it demonstrates active engagement with and approval of the proposed course of action. [250] This email forms part of a broader pattern of conduct evident in the documentary record. Andrew and Yong Chooi Lan's attempts to portray Andrew as a mere bystander to these schemes is contradicted by his consistent failure to express any objection to proposals that would clearly harm Golden Plus and benefit only TSS’s estate and its beneficiaries. In the context of a fiduciary relationship, silence in the face of proposals to harm the company one serves can itself constitute a breach of duty. As established in Kuwait Oil Tanker, conspiracy may be inferred from overt acts adapted to a common unlawful purpose, and it is not necessary to show express agreement. [251] Moreover, the timing of these wind-up efforts is significant. They followed the failure of other attempts by Andrew and his co-conspirators to maintain control over Golden Plus, including the fraudulent share allotment scheme that was thwarted by court action. When viewed in this context, the attempt to wind up Golden Plus appears as a last-resort strategy to maintain control over S/N Yvwtb2AFpk50KUgpFho0w the valuable Hong Kong and Shanghai subsidiaries after other methods had failed. This supports the inference that these actions were part of a coordinated conspiracy rather than good-faith attempts to protect Golden Plus from alleged mismanagement. [252] The purported justification that these actions were taken to protect Golden Plus from Jason Teo's alleged wrongdoings lacks credibility in light of the High Court's dismissal of OS 354, which was unanimously affirmed by the Court of Appeal. These judicial determinations found no merit in the allegations against Jason Teo, which were later admitted by TSH to be false. To continue pursuing actions against Golden Plus based on these discredited allegations demonstrates that the true motivation was not protection of the company but furtherance of the conspiracy. [253] Andrew and Yong Chooi Lan's reliance on advice from “various solicitors, consultants and even Tan Say Han” does not excuse their conduct. TSH himself was a co-conspirator, and the advice of professionals does not shield directors from liability when they knowingly pursue courses of action harmful to the company. The evidence demonstrates that Andrew was fully aware of the potential harm to Golden Plus from these wind-up attempts, yet proceeded nonetheless. S/N Yvwtb2AFpk50KUgpFho0w [254] In conclusion, I find that the attempts to wind up Golden Plus were not good-faith efforts to protect the company but rather calculated steps in the broader conspiracy to sever Golden Plus from its valuable subsidiaries and preserve the proceeds of TSS’s fraud. Andrew was an active participant in these schemes, and his attempts to portray himself as a passive recipient of information are not credible in light of the documentary evidence. Allegations of Collateral Purpose and the Application of the Rule in Browne v Dunn [255] Andrew and Yong Chooi Lan submit that the Plaintiffs are not entitled to the equitable relief sought on the grounds that the Plaintiffs were allegedly guilty of unconscionable conduct and did not come with “clean hands.” They contend that this Suit was filed for the collateral purpose of Jason Teo's retaliation against Andrew. They question the investigations conducted by PW1 Wong Koon Wai and his co-directors, characterising PW1 as a “lackey” of Jason Teo. Most significantly, Andrew and Yong Chooi Lan argue that due to the Plaintiffs' alleged failure to cross-examine Andrew and challenge the Defendants' case on this issue, it should be deemed accepted by the Plaintiffs pursuant to the rule in Browne v Dunn [1893] 6 R 67 (H.L.). [256] The Plaintiffs contend that Andrew and Yong Chooi Lan's allegations regarding unconscionable conduct, unclean S/N Yvwtb2AFpk50KUgpFho0w hands, and collateral purpose are wholly without evidentiary basis. They argue that the suggestion that PW1 Wong Koon Wai and his co-directors conducted biased investigations or that PW1 Wong Koon Wai is a “lackey” of Jason Teo is unsupported by evidence, including the Defendants' own testimony. The Plaintiffs further submit that Andrew and Yong Chooi Lan's reliance on the rule in Browne v Dunn is misplaced, as it was incumbent on them to put their case regarding collateral purpose to the Plaintiffs' witnesses during cross-examination, rather than vice versa. [257] Having carefully considered the parties' submissions, I find Andrew and Yong Chooi Lan’s allegations of collateral purpose to be without merit. They have failed to adduce any credible evidence to substantiate their claims that this litigation was initiated for improper purposes. Their characterisations of PW1 Wong Koon Wai as a “lackey” of Jason Teo and their allegations regarding the legitimacy of the investigations conducted are serious accusations that require substantial evidentiary support. No such evidence has been presented to this court. Indeed, as correctly pointed out by the Plaintiffs, these allegations were not even supported by their own testimony. [258] Andrew and Yong Chooi Lan’s reliance on the rule in Browne v Dunn is fundamentally misconceived. This rule requires that a party's case be put to the opposing party's S/N Yvwtb2AFpk50KUgpFho0w material witnesses during cross-examination if that case contradicts the witness's evidence. However, this principle does not operate in the manner suggested by them. It was they who raised the allegation of collateral purpose as part of their defence. Therefore, it was incumbent upon them to put this case to the Plaintiffs' witnesses during cross-examination. The failure to do so would, if anything, operate against the Defendants rather than the Plaintiffs. [259] The rule in Browne v Dunn serves the purpose of fairness in litigation by ensuring that witnesses have the opportunity to respond to contradictory evidence that will be presented against them. It prevents the ambush of witnesses with new or contradictory material without giving them the opportunity to explain or rebut such material. In the present case, if Andrew and Yong Chooi Lan wished to rely on allegations of collateral purpose, they should have put these allegations to the Plaintiffs' witnesses, particularly PW1 Wong Koon Wai, during cross-examination. Their failure to do so undermines the credibility of these allegations. [260] Moreover, the court notes that equitable maxims such as “he who comes to equity must come with clean hands” must be applied with caution and in direct relation to the subject matter of the litigation. The alleged conduct must have an immediate and necessary relation to the equity that the party seeks. Andrew and Yong Chooi Lan have S/N Yvwtb2AFpk50KUgpFho0w failed to establish any connection between their vague allegations of impropriety and the substantive claims of fraud, breach of fiduciary duty, and conspiracy that form the core of this case. [261] In conclusion, I find that Andrew and Yong Chooi Lan’s allegations of collateral purpose and unconscionable conduct are unsupported by evidence and do not provide any basis for denying the Plaintiffs the equitable relief they seek. Their misapplication of the rule in Browne v Dunn further undermines the credibility of their position on this issue. ST Goh (7th Defendant) Sufficiency of Particulars in the Statement of Claim Against ST Goh [262] From the facts of the case, defences relied on by ST Goh and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether the SOC contained sufficient particulars of ST Goh's alleged involvement in fraud and conspiracy. b) Whether ST Goh could rely on board approvals to escape liability for fraud, conspiracy and S/N Yvwtb2AFpk50KUgpFho0w breach of fiduciary duties when those approvals were allegedly obtained through misrepresentations and concealment of material facts. c) Whether the Plaintiffs' claims against ST Goh were time-barred under the Limitation Act 1953, given that the alleged fraud was deliberately concealed and only discovered when TSS's Hong Kong Will was revealed following his death in 2018. d) Whether the Plaintiffs' witnesses' evidence was credible and carried sufficient weight despite ST Goh's challenges regarding their alleged inconsistencies, evasiveness, and lack of personal knowledge of the historical events in question. e) Whether the Plaintiffs' expert evidence from Sajjad Akhtar and Martin Wong should be admitted and accorded appropriate weight despite ST Goh's challenges that Akhtar improperly made findings of fact and that Martin Wong's opinion was unreliable for failing to consider the appointment of a new board of directors. S/N Yvwtb2AFpk50KUgpFho0w f) Whether the Plaintiffs' decision to name ST Goh as a defendant while not pursuing claims against other directors of Golden Plus who were equally involved in approving the Management Agreement and Addendum constituted an abuse of process. [263] Below is my analysis based on the issues above. [264] ST Goh argues that the Plaintiffs' pleadings are bereft of particulars concerning his alleged involvement in fraud and conspiracy. In Annexure C to his Written Submissions, ST Goh sets out in table form his challenges to various paragraphs of the SOC, claiming they lack specific particulars of his involvement. He specifically takes issue with paragraph 22 of the SOC, which he characterises as a general allegation of conspiracy without specific details of his involvement. Similarly, he contends that paragraph 40 of the SOC fails to particularise his knowledge of TSS’s interest in the Manfield Lease Agreement, which he claims is critical to establishing his alleged breach of fiduciary duty. ST Goh's position appears to be that without explicit particulars of his knowledge and intent in the pleadings themselves, the claims against him should fail. [265] The Plaintiffs contend that their SOC contains sufficient particulars of ST Goh's involvement in fraud, conspiracy, and breach of fiduciary duties. They point out that ST S/N Yvwtb2AFpk50KUgpFho0w Goh's argument regarding insufficient particulars was previously raised in his striking-out application, which was dismissed by Justice Anand Ponnudurai, who found that sufficient particulars had been pleaded against ST Goh. The Plaintiffs further argue that in conspiracy cases, overt acts must be scrutinised to infer the existence of a combination or agreement, and that ST Goh confuses the particulars of claim with evidence that needs to be adduced at trial. They assert that paragraph 22 of the SOC contains a general plea of conspiracy to defraud spanning two decades, followed by detailed pleadings of overt acts involving various defendants at different intervals, with the common purpose of siphoning monies from the RGP. Similarly, paragraph 40 of the SOC specifically details ST Goh's involvement in the scheme to siphon monies from the Dino Beach Water Park through the Manfield Lease Agreements. The Plaintiffs maintain that ST Goh was not caught by surprise during trial, as he raised no objections regarding the lack of particulars during the proceedings. [266] After careful consideration of both parties' submissions, I find that the Plaintiffs' SOC contains sufficient particulars regarding ST Goh's alleged involvement in the conspiracy to defraud the Plaintiffs. This finding aligns with Justice Anand Ponnudurai's earlier determination when dismissing ST Goh's striking-out application, where His Lordship specifically held that “sufficient particulars have been pleaded against ST Goh”. ST Goh's attempt to S/N Yvwtb2AFpk50KUgpFho0w revisit this issue post-trial is problematic and contrary to established procedural principles. [267] The nature of conspiracy claims must be properly understood in assessing the sufficiency of pleadings. As noted in Kuwait Oil Tanker Co, “it is not necessary to show that there is anything in the nature of an express agreement, whether formal or informal. It is sufficient if two or more persons combine with a common intention, or in other words, that they deliberately combine, albeit tacitly, to achieve a common end.” This principle acknowledges the inherent difficulty in pleading explicit details of conspiratorial agreements, which by their nature are typically concealed. [268] The Court in Kuwait Oil Tanker Co further emphasised that “in most cases it would be necessary to scrutinise the acts relied upon in order to see what inferences can be drawn as to the existence or otherwise of the alleged conspiracy or combination. It would be the rare case in which there will be evidence of the agreement itself.” This statement reflects the reality that conspiracy claims often depend on inferential evidence rather than direct proof of explicit agreements. [269] Looking at the SOC, paragraph 22 establishes the general framework of the conspiracy spanning two decades, while subsequent paragraphs detail specific overt acts involving ST Goh and other defendants. For S/N Yvwtb2AFpk50KUgpFho0w example, paragraph 40 specifically identifies ST Goh as a participant in the scheme to siphon monies from the Dino Beach Water Park through the Manfield Lease Agreement, alongside TSS and Li Lin. It also explicitly states that ST Goh failed to disclose TSS’s interest in this agreement. While ST Goh complains that the pleadings do not particularise his knowledge of TSS’s interest, this conflates pleading requirements with evidentiary matters to be established at trial. [270] ST Goh's complaint that certain paragraphs lack specificity misunderstands the distinction between pleadings and evidence. The Plaintiffs were not required to plead evidence of ST Goh's knowledge in the SOC itself; rather, they were required to plead material facts from which such knowledge could be inferred if proven at trial. The SOC adequately identifies ST Goh's role in the relevant transactions and his alleged failures to disclose material information, providing sufficient particulars to enable him to understand and respond to the case against him. [271] It is also significant that ST Goh did not raise objections regarding the sufficiency of pleadings during the trial itself. As established in Superintendent of Lands and Surveys (4th Div) & Anor v Hamit bin Matusin & Ors [supra], if a party introduces evidence at trial that supplements a defect in its pleadings and the opposing party does not object at that time, then that evidence S/N Yvwtb2AFpk50KUgpFho0w cures the pleading defect by preventing surprise - except where an objection is raised. The Supreme Court in that case emphasised that procedural objections regarding pleadings should be raised at the appropriate stage of proceedings, not after evidence has been led and the trial concluded. [272] The Plaintiffs led evidence at trial regarding ST Goh's knowledge and involvement in the alleged conspiracy, including evidence of his role in authorising and executing the impugned agreements. ST Goh had full opportunity to challenge this evidence and present his defence. His attempt to now argue deficiency in the pleadings appears to be an attempt to circumvent the substantive evidence presented against him. [273] For these reasons, I find that the SOC contained sufficient particulars of ST Goh's alleged involvement in the conspiracy to defraud and breach of fiduciary duties. His objections regarding the pleadings are dismissed. Effect of Board Approvals on ST Goh's Liability [274] ST Goh's position is that at all material times, the Plaintiffs' board had authorised, resolved, and approved the entry into the Management Agreement and its Addendum. He specifically highlights that the Addendum was affirmed by Golden Plus's board of directors on 21.6.2013. ST Goh argues that the Plaintiffs' acceptance S/N Yvwtb2AFpk50KUgpFho0w of these agreements - which is not disputed - demonstrates that the Plaintiffs knew about his purported breach of fiduciary duties regarding these agreements as early as 2007 and 2013, and have acquiesced to them. He contends that the Plaintiffs' allegations concerning these agreements are thus barred by laches and estoppel, and that the agreements remain valid and binding. In support of this position, ST Goh cites the case of Invescor Sdn Bhd v Sobena Maju Sdn Bhd [2008] 2 MLJ 359, where the Court of Appeal held that a party's acceptance and adoption of an agreement precludes subsequent claims that another party breached its fiduciary duty. [275] The Plaintiffs contend that ST Goh, cannot rely on board approvals of Golden Plus and its subsidiaries to escape liability for fraud, conspiracy and breach of fiduciary duties. They assert that these board approvals were obtained through misrepresentations and a false narrative consistently presented by ST Goh and TSS to the board of Golden Plus. According to the Plaintiffs, ST Goh's defence ignores several material facts, including that: (a) ST Goh and TSS misrepresented CIDL's involvement in the RGP; (b) they took active steps to affirm CIDL's purported indispensable participation in the project; (c) they misled the board about Manfield's alleged involvement in the Manfield Lease Agreements despite no evidence of actual performance; (d) they proffered an incredible theory about CIDL and Manfield taking over S/N Yvwtb2AFpk50KUgpFho0w staff from YSL and GCE without supporting evidence; (e) they failed to be transparent regarding dealings related to the CIDL Management Agreement and its Addendum; and (f) they misled the board by failing to disclose that the Addendum had been executed. The Plaintiffs maintain that resolutions passed based on such misrepresentations cannot vindicate ST Goh, and invoke the principle that “fraud unravels all”. [276] After careful consideration of both parties' submissions, I find that ST Goh cannot rely on board approvals to escape liability for his alleged wrongdoings. The principle that “fraud unravels all” is well-established in jurisprudence (Lazarus Estates Ltd v Beasley), and it means that transactions tainted by dishonesty cannot be legitimised by subsequent approval based on incomplete or misleading information. The evidence presented demonstrates that ST Goh, together with TSS, consistently misrepresented material facts to the board of Golden Plus regarding CIDL and Manfield. These misrepresentations went to the heart of the transactions in question, as they concerned the very nature of these entities' involvement in the RGP and the Dino Beach Water Park, and concealed TSS’s interest in these entities. [277] ST Goh's reliance on board approvals is particularly problematic given his position as Group Executive Director of Golden Plus and his responsibility for the S/N Yvwtb2AFpk50KUgpFho0w overall operations of the company and its subsidiaries. As the liaison officer between the subsidiaries in Shanghai and Hong Kong and Golden Plus in Kuala Lumpur, ST Goh was the “eyes and ears” of Golden Plus. This position imposed upon him a heightened duty of transparency and good faith. The evidence reveals, however, that far from fulfilling this duty, ST Goh actively participated in concealing material information from the board. His conduct regarding the Addendum to the CIDL Management Agreement is particularly telling, as he failed to disclose to the board that it had been executed when directly asked about its status. [278] ST Goh's attempt to distance himself from wrongdoing by characterising himself as merely a “supporting director” to TSS is unconvincing and contrary to his documented responsibilities. During cross-examination, ST Goh repeatedly sought to shift all responsibility to TSS, claiming that “TSS was the man who is involved from Day 1” and that “he knows everything, I don't”. This explanation cannot be reconciled with ST Goh's senior position in the Gplus Group and his specific liaison responsibilities. ST Goh's testimony that he was “just a supporting director” who would “sign reso[lutions]” reflects a fundamental misunderstanding of his fiduciary obligations as a director. Directors cannot abdicate their responsibilities by claiming to be mere signatories or by deferring blindly to other directors, however influential they may be. S/N Yvwtb2AFpk50KUgpFho0w [279] The authorities cited by ST Goh do not assist his case. The case of Invescor Sdn Bhd v Sobena Maju Sdn Bhd is distinguishable from the present case. In Invescor, there was no suggestion that the appellant's acceptance of the agreement was obtained through misrepresentation or fraud. Here, the evidence points to a deliberate scheme by ST Goh and TSS to mislead the board of Golden Plus about material aspects of the transactions in question. Moreover, the evidence led at trial strongly suggests that ST Goh knew about TSS’s interest in CIDL and Manfield, yet failed to disclose this crucial information to the board. [280] Several aspects of the evidence support this conclusion. First, ST Goh and TSS caused YIL to pass resolutions on the CIDL Management Agreement and Manfield Lease Agreements at a time when these companies did not even exist. Second, they proceeded with the CIDL Management Agreement despite CIDL having no track record in development and construction. Third, ST Goh participated in allowing the Manfield Lease Agreements to be entered into, surrendering profit to an entity that did not perform its obligations. Fourth, ST Goh misreported and failed to report accurately to PwC and Bursa Malaysia on the execution of the Addendum. Fifth, ST Goh was directly involved in retiring the Co-Operation Agreement with Heng Fat, which the evidence suggests was a sham transaction. S/N Yvwtb2AFpk50KUgpFho0w [281] These acts, viewed collectively, lead to the irresistible conclusion that ST Goh knew about TSS’s interest in CIDL and Manfield, was aware of the sham nature of these transactions, and actively participated in concealing this information from the board of Golden Plus. As such, the board approvals obtained under these circumstances cannot shield ST Goh from liability for breach of fiduciary duties, fraud, or conspiracy. The maxim “fraud unravels all” applies with full force in this case. [282] For these reasons, I find that ST Goh's defence based on board approvals fails. The Plaintiffs' claim against him on this ground is allowed. Application of the Limitation Act 1953 to the Plaintiffs' Claims [283] ST Goh argues that the Plaintiffs' claims are barred by limitation, laches, acquiescence, and estoppel as most of the purported breaches concerning him occurred more than a decade ago. He contends that the Plaintiffs “cannot allege a sudden discovery of these alleged wrongdoings after the appointment of a few new directors in or around 2020.” ST Goh further argues that the Court should consider when the board of Golden Plus accepted various decisions pertaining to the CIDL Management Agreement and Addendum as well as the Manfield Lease Agreements for purposes of limitation. He emphasises that at all material times, the Plaintiffs' board had authorised, resolved, and approved the entries into these S/N Yvwtb2AFpk50KUgpFho0w agreements, with the Addendum specifically being affirmed by Golden Plus’s board on 21.6.2013. [284] The Plaintiffs contend that their claims are not time-barred despite the alleged breaches occurring more than a decade ago. They rely on section 29 of the Limitation Act 1953, which provides an exception in cases of fraud, concealment, or mistake, where the limitation period begins to run only from the date the fraud was discovered or could have been discovered with reasonable diligence. The Plaintiffs argue that the fraud could not have been discovered with reasonable diligence before April 2018, when TSS’s Wills were read, particularly his Hong Kong Will which revealed his entitlements in CIDL and Manfield. According to PW1, Wong Koon Wai, it was only through Suit 560 - heard together with Suit 443 and Kuala Lumpur High Court Suit No. WA-22NCC-601-10/2019 (“Suit 601”) - that they learned TSS had an interest in CIDL and Manfield. The Affirmation Verifying Schedule of Assets and Liabilities affirmed by the executrices of TSS’s Hong Kong Will on 6.5.2019 further disclosed that TSS had 97.5% shareholding in CIDL and that Huang was holding those shares on trust for TSS. [285] After careful consideration of the submissions by both parties, I find that the Plaintiffs' claims are not time-barred by virtue of section 29 of the Limitation Act 1953. This provision states that where a cause of action is based on fraud or where the right of action is concealed by fraud, S/N Yvwtb2AFpk50KUgpFho0w “the period of limitation shall not begin to run until the plaintiff has discovered the fraud...or could with reasonable diligence have discovered it.” The central question, therefore, is when the fraud became discoverable with reasonable diligence. [286] The evidence demonstrates that TSS’s ownership of CIDL and Manfield was deliberately concealed until 2018, when his Hong Kong Will was revealed following his death. It was only then that the Plaintiffs discovered that TSS owned 97.5% of CIDL, with Huang holding shares on trust for him. This ownership structure was subsequently confirmed by an Affirmation Verifying Schedule of Assets and Liabilities filed on 6.5.2019 in separate legal proceedings. [287] ST Goh's criticism of the “sudden discovery” of these wrongdoings fundamentally misunderstands the nature of fraud. As aptly stated in the Plaintiffs' submissions, “fraud is often 'suddenly discovered' given that the wrongdoers go to length to protect and conceal the fraud.” The very purpose of section 29 is to protect plaintiffs in situations where wrongdoers have concealed their actions, making discovery impossible until a triggering event occurs - in this case, the reading of TSS’s Will. [288] ST Goh's reliance on board resolutions and approvals ignores a fundamental principle: fraud unravels all. As noted in the Plaintiffs' submissions, ST Goh and TSS S/N Yvwtb2AFpk50KUgpFho0w “controlled the false narrative to the board.” Board resolutions obtained through misrepresentation and concealment of material facts cannot shield a director from liability for breach of fiduciary duties. The evidence shows that ST Goh and TSS, as the only two directors of YIL at the relevant time, presented a consistent but false narrative to the Golden Plus board regarding CIDL and Manfield's roles and ownership. [289] The sophisticated corporate structures involving offshore companies and nominee shareholdings were designed to obscure the true beneficial ownership, making earlier discovery impossible even with reasonable diligence. While the PwC audit in 2013 raised some concerns about CIDL's involvement, it could not uncover TSS’s ownership due to the deliberate concealment employed by TSS and ST Goh. [290] The Plaintiffs acted promptly after discovering the fraud, filing suit in 2020, well within the six-year window from discovery in 2018. ST Goh's reliance on laches, acquiescence, and estoppel is misplaced, as these doctrines cannot apply where the underlying circumstances were concealed through fraud. [291] For these reasons, I find that the limitation period for the Plaintiffs' claims began to run in 2018 upon discovery of the fraud, and their action commenced in 2020 is therefore within time. The principles of laches, S/N Yvwtb2AFpk50KUgpFho0w acquiescence, and estoppel do not apply in this case given the fraudulent concealment that has been established. Credibility and Weight of the Plaintiffs' Witnesses' Evidence [292] ST Goh argues that the Plaintiffs' witnesses demonstrated inconsistencies and evasiveness, referring to his Annexure D. He further contends in Annexure E that the Plaintiffs' witnesses lacked personal knowledge of the events in question, suggesting this undermines the reliability and weight of their testimony. ST Goh's position appears to be that without direct personal knowledge of the events, the Plaintiffs' witnesses cannot provide credible evidence to establish the elements of fraud, conspiracy, and breach of fiduciary duties alleged against him. [293] The Plaintiffs contend that ST Goh's attack on their witnesses' credibility is unfounded. They argue that ST Goh himself was evasive and inconsistent in his own testimony, contradicting contemporaneous documents and events presented at trial. The Plaintiffs assert that it is misconceived for ST Goh to suggest evasiveness on the part of their witnesses, particularly regarding PW1 (Wong Koon Wai) and his knowledge of other proceedings. They emphasise that PW1's testimony focused on his discovery of fraud pertaining to Golden Plus and its subsidiaries, not on unrelated companies S/N Yvwtb2AFpk50KUgpFho0w such as Rosa Bianca or Classico which were raised by counsel for other defendants. Furthermore, the Plaintiffs maintain that while PW1 lacked personal knowledge of the events giving rise to the breaches, this does not diminish the weight of his evidence which was primarily based on contemporaneous documents and events. They argue that the same documents were effectively put to the Defendants' witnesses to draw the necessary inferences of fraud and conspiracy. [294] After careful consideration of both parties' submissions and the evidence presented at trial, I find the Plaintiffs' arguments compelling. The law recognises that in cases involving allegations of corporate fraud, conspiracy, and breach of fiduciary duties spanning many years, it is often impossible for witnesses to have direct personal knowledge of all relevant events. This is particularly true in this case, where the alleged fraudulent scheme was perpetrated over two decades across multiple jurisdictions and involved complex corporate structures deliberately designed to obscure beneficial ownership and control. [295] The fact that PW1 lacked direct personal knowledge of certain historical events does not diminish the weight of his testimony when that testimony is based on contemporaneous documentary evidence. As noted in O’Connor LJ in R v Siracusa (1990) 90 Cr App Rep (English CA), “the origins of all conspiracies are S/N Yvwtb2AFpk50KUgpFho0w concealed and it is usually quite impossible to establish when or where the initial agreement was made, or when or where other conspirators were recruited.” In such cases, courts must necessarily rely on inferences drawn from documentary evidence and the testimony of witnesses who may not have direct knowledge of the origins of the conspiracy but can speak to the documentary trail left behind. [296] ST Goh's criticism of PW1's testimony regarding other legal proceedings is particularly unpersuasive. PW1's evidence was properly focused on his discovery of fraud pertaining to Golden Plus and its subsidiaries, which is directly relevant to the issues before this court. Questions about unrelated companies such as Rosa Bianca and Classico appear designed to distract rather than illuminate. Far from demonstrating evasiveness, PW1's focused testimony demonstrates an appropriate understanding of the matters relevant to these proceedings. [297] Having observed ST Goh's testimony over two and a half days, I find his own credibility to be significantly compromised. His attempt to characterise himself as merely a “supporting director” who blindly followed TSS’s instructions is inconsistent with his senior position and specific responsibilities within the Gplus Group. As Group Executive Director of Golden Plus, liaison officer between the subsidiaries, and one of only two directors of YIL that S/N Yvwtb2AFpk50KUgpFho0w entered into the impugned agreements, ST Goh had clear responsibilities and obligations that cannot be absolved by claiming to be a mere functionary. His shifting explanations regarding the Addendum to the CIDL Management Agreement and his failure to disclose material information to Golden Plus’s board suggest an attempt to distance himself from actions he knew were improper. [298] The documentary evidence in this case, including contemporaneous communications, board minutes, and the forensic audit findings, provides a coherent and compelling narrative of knowing involvement in the fraudulent scheme. This documentary evidence, which forms the basis of PW1's testimony, stands in stark contrast to ST Goh's self-serving testimony. In such circumstances, the testimony of witnesses like PW1, even without direct personal knowledge of all events, carries significant weight when supported by contemporaneous documentary evidence. [299] For these reasons, I reject ST Goh's attacks on the credibility and reliability of the Plaintiffs' witnesses and find that their evidence, particularly when considered alongside the documentary record, is both credible and compelling. S/N Yvwtb2AFpk50KUgpFho0w Admissibility and Weight of the Plaintiffs' Expert Evidence [300] ST Goh challenges the expert evidence presented by the Plaintiffs as flawed. With respect to Sajjad Akhtar, ST Goh contends that he improperly made findings of fact, thereby acting as a factual witness rather than confining himself to his role as an expert. As for Martin Wong, ST Goh argues that his expert opinion is unreliable because he omitted material or important facts, specifically that he failed to consider the appointment of a new board of directors over Golden Plus when rendering his opinion on Hong Kong law. [301] The Plaintiffs contend that both their expert witnesses, Sajjad Akhtar (financial expert) and Martin Wong Wing Hoi (Hong Kong law expert), provided credible and admissible expert testimony that should be accepted by the court. They assert that Sajjad Akhtar properly verified their claims of losses caused by the fraud, and the fact that he discovered documents to verify, support or reject these claims does not transform him into a factual witness. Regarding Martin Wong, the Plaintiffs maintain that his opinion on related-party transactions and other aspects of Hong Kong law was based on a set of assumed facts, and the fact that he did not consider the appointment of a new board of directors over Golden Plus is irrelevant to his expert opinion. The Plaintiffs argue that ST Goh did not present any opposing expert testimony and point to the principle from Maju Ikan Sdn Bhd v S/N Yvwtb2AFpk50KUgpFho0w Barclays Bank Plc which held that when there is a single expert opinion, the court should first determine if it is clearly indefensible and lacks support from the essential facts before dismissing it. [302] After careful consideration of both parties' submissions, I find that the Plaintiffs' expert evidence is admissible and should be accorded appropriate weight. The principles governing expert evidence are well-established. An expert witness is engaged to provide the court with an opinion on a particular issue based on his specialised knowledge, skill, or experience in a field that is outside the ordinary knowledge of the court. While an expert must remain within the bounds of his expertise and should not usurp the court's function by making findings of fact, it is entirely appropriate for an expert to examine and verify underlying facts relevant to forming his opinion. In the present case, Sajjad Akhtar did precisely that. His verification of the Plaintiffs' claims of loss caused by the alleged fraud was a necessary step in formulating his expert opinion on the quantum of financial loss. This does not convert him into a factual witness, as ST Goh suggests, but rather demonstrates the thoroughness of his expert analysis. [303] With regard to Martin Wong's expert testimony on Hong Kong law, I find that the omission cited by ST Goh does not undermine the validity of his opinion. Martin Wong was engaged to provide expert evidence on specific S/N Yvwtb2AFpk50KUgpFho0w aspects of Hong Kong law, particularly related-party transactions, based on a set of assumed facts. The appointment of a new board of directors at Golden Plus appears to have little if any relevance to the legal principles Martin Wong was asked to address. Expert opinions are often based on assumed facts or hypothetical scenarios, and the fact that certain organisational changes at Golden Plus were not incorporated into these assumptions does not render his expert opinion defective or unreliable. [304] I am particularly persuaded by the principle articulated in Maju Ikan Sdn Bhd v Barclays Bank Plc, which counsels judicial restraint in rejecting uncontradicted expert evidence. When only one expert opinion is available on an issue, the court should first assess whether it is clearly without merit and unsupported by the essential facts before rejecting it outright. Having reviewed the expert evidence presented by the Plaintiffs, I find it is neither indefensible nor unsupported by the basic facts. ST Goh had ample opportunity to introduce competing expert evidence but chose not to do so. In these circumstances, and in the absence of compelling reasons to reject the uncontradicted expert evidence, I accept the expert testimony of both Sajjad Akhtar and Martin Wong as reliable and relevant to the matters in dispute. S/N Yvwtb2AFpk50KUgpFho0w Plaintiffs' Discretion in Naming Defendants in a Tortious Action [305] ST Goh argues that the Plaintiffs' claim constitutes an abuse of process because other directors of Golden Plus who were equally involved in approving the Management Agreement and Addendum were not named as defendants in this suit. In effect, ST Goh suggests that if he is to be held liable for his role as a director who approved these agreements, then all other directors who similarly approved them should also be joined as defendants. His position appears to be that the selective prosecution of certain directors while excluding others who participated in the same board decisions is unfair and constitutes an abuse of the court's process. [306] The Plaintiffs contend that their selection of defendants in this action is proper and within their discretion as claimants in a tortious action. They submit that in view of the overwhelming documentary and oral evidence elicited during trial, the defendants named in this suit are those who were “intrinsically involved in the fraud and conspiracy to defraud.” The Plaintiffs assert it is trite law that they have complete discretion as to which tortfeasors they wish to pursue in any tortious action, particularly in cases involving fraud and conspiracy. They characterise ST Goh's argument on this point as “unmeritious and baseless.” S/N Yvwtb2AFpk50KUgpFho0w [307] After careful consideration of both parties' submissions, I find the Plaintiffs' arguments compelling. A plaintiff in a tortious action has discretion to choose which of several joint tortfeasors to sue. The fact that the Plaintiffs have chosen not to sue every possible tortfeasor does not vitiate their claim against those they have elected to pursue. [308] After careful consideration of both parties' submissions, I find the Plaintiffs' arguments compelling. As established in Lai Soon Onn v Chew Fei Meng and other appeals [2019] 2 MLJ 103, “It is trite law that where there are two or more persons liable for the tort of conspiracy, and where the liability of each person is joint and several, a plaintiff is entitled to sue whomsoever that he wishes.” The Court of Appeal further confirmed that Order 15 rule 4(3) of the Rules of Court 2012 explicitly provides that where relief is claimed against a defendant who is jointly and severally liable with others, “that other person need not be made a defendant to the action.” The fact that the Plaintiffs have chosen not to sue every possible tortfeasor does not vitiate their claim against those they have elected to pursue. [309] The evidence presented at trial demonstrates that ST Goh was not merely one among many directors who passively approved decisions. Rather, as established earlier in these grounds, ST Goh held significant positions within the Gplus Group, including Group Executive S/N Yvwtb2AFpk50KUgpFho0w Director of Golden Plus and director of its Hong Kong subsidiaries. He was specifically tasked with being the “liaison officer between the subsidiaries in Shanghai and Hong Kong and to report back to the holding company in Kuala Lumpur as the eyes and ears of Golden Plus.” This unique position imposed special duties and responsibilities that distinguished his role from that of other directors on the board. [310] Moreover, ST Goh and TSS were the only two directors of YIL at the time when the impugned agreements were executed. This placed him in a position of particular knowledge and responsibility that other directors of Golden Plus did not share. The evidence supports the Plaintiffs' contention that ST Goh was “intrinsically involved” in the fraudulent scheme in ways that other directors were not. [311] In cases involving allegations of fraud and conspiracy, the selection of defendants inevitably involves an assessment of each potential defendant's level of involvement and culpability. As noted in Kuwait Oil Tanker, conspirators may join a conspiracy at different times and play different roles. The Plaintiffs have presented evidence of ST Goh's specific acts and omissions that they allege constituted his participation in the conspiracy. S/N Yvwtb2AFpk50KUgpFho0w [312] ST Goh's attempt to deflect responsibility by pointing to others who were not named as defendants is unconvincing. His argument effectively amounts to a “why me and not them?” defence, which does not address the substantive evidence of his own conduct. The law does not require a plaintiff to sue all potential wrongdoers; it merely requires that the plaintiff establish the liability of those it does choose to sue. [313] For these reasons, I find that the Plaintiffs' decision to name ST Goh as a defendant, while not pursuing claims against other directors of Golden Plus, does not constitute an abuse of process. The Plaintiffs' claim against ST Goh on this ground is allowed. TSH (11th Defendant) [314] From the facts of the case, defences relied on by TSH and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether TSH breached his fiduciary duties as a director (and subsequently as Executive Director) of Golden Plus by failing to investigate and take appropriate action regarding concerns about the CIDL Management Agreement and its Addendum despite acknowledging the need for S/N Yvwtb2AFpk50KUgpFho0w investigation and being aware of red flags raised during board meetings. b) Whether TSS was the beneficial owner of CIDL from its incorporation and CIDL had no substantive involvement in the development of the RGP, thereby establishing that the CIDL Management Agreement and its Addendum were vehicles for the improper diversion of company assets without corresponding benefits. c) Whether the Manfield Lease Agreements were legitimate commercial arrangements or instruments designed to divert funds from the Gplus Group without legitimate business purpose. d) Whether the issuance and allotment of 46,196,995 shares in Golden Plus to Eng in August 2020 was a fraudulent scheme designed to maintain control of Golden Plus regardless of the outcome of pending court proceedings. e) Whether TSH's attempt to secure the release of the 23 title deeds held by Messrs Yap & Chin as stakeholders was a legitimate business action or part of a fraudulent scheme to misappropriate valuable company assets before potentially losing control of Golden Plus. S/N Yvwtb2AFpk50KUgpFho0w f) Whether TSH's actions in making allegations against Jason Teo and attempting to wind up Golden Plus constituted legitimate business decisions or were part of a fraudulent conspiracy to maintain control over company assets after losing legitimate board authority. g) Whether the expert evidence provided by the Plaintiffs' experts Martin Wong and Sajjad Akhtar was reliable and methodologically sound such that it should be accorded appropriate weight in determining the issues before the court. [315] Below is my analysis based on the issues above. Breach of Fiduciary Duties Regarding the CIDL Management Agreement and its Addendum [316] TSH maintains that the CIDL Management Agreement was entered into for legitimate business purposes before his appointment as director. He contends that the agreement helped overcome challenges faced by the Gplus Group in the RGP, including financial difficulties following significant losses after developing Phase 1, potential land confiscation if construction was delayed, employment issues related to staff in the PRC, and restrictions on repatriating funds from China. He further submits that the board was presented with the option to S/N Yvwtb2AFpk50KUgpFho0w propose a joint venture with a “friendly party,” and Golden Plus’s legal consultant, Krishna Kumar, suggested the formation of a management company in Hong Kong. TSH relies on the Special Audit Report's conclusion that “Given the successful outcome of Phase 2, it would seem that the decision to engage CIDL was a correct one for Gplus.” [317] The Plaintiffs contend that TSH, breached his fiduciary duties by failing to investigate and address concerns regarding the CIDL Management Agreement and its Addendum, particularly after his appointment as a director and subsequently as Executive Director (Finance & Administration) of Golden Plus. They assert that despite not executing the original agreement himself, TSH assumed fiduciary duties upon joining the board on 9.5.2012, including obligations to investigate any misfeasance by co-directors, inform himself of company affairs, and acquire sufficient knowledge to properly discharge his duties. The Plaintiffs highlight that TSH was appointed to the board just four days after Golden Plus requested TSS to review and amend the Addendum, and seven months before the Addendum was executed on 20.12.2012. They emphasise that between January and May 2013, at least four board meetings (the 157th, 159th, 162nd, and 164th) addressed serious concerns about the Addendum, including its potential characterisation as an unauthorised disposal of assets at a significant discount. Despite acknowledging the need for investigation at the S/N Yvwtb2AFpk50KUgpFho0w 162nd board meeting, TSH took no substantive action even after becoming Executive Director in June 2013. [318] Having carefully examined the evidence, I find that TSH breached his fiduciary duties to Golden Plus in relation to the CIDL Management Agreement and its Addendum. While TSH correctly points out that he was not a director when the original Management Agreement was executed on 25.7.2007, the chronology of events clearly demonstrates his subsequent involvement and responsibility. TSH was appointed to the board on 9.5.2012, just four days after Golden Plus requested TSS to review and amend the proposed Addendum. Seven months later, on 20.12.2012, the Addendum was executed without the requested amendments. Between January and May 2013, the board of Golden Plus held at least four meetings where serious concerns about the Addendum were raised. At the 162nd board meeting on 3.4.2013, the board explicitly stated it did not recognise the Addendum, acknowledging only the Management Agreement of 25.7.2007. During this meeting, director Yeoh Hor San suggested that as disagreements between CIDL and Golden Plus were “going overboard,” Golden Plus ought to engage a professional or committee to investigate the matter, a suggestion with which TSH concurred. S/N Yvwtb2AFpk50KUgpFho0w [319] TSH's fiduciary duties as a director, particularly after his appointment as Executive Director (Finance & Administration) on 21.6.2013, required affirmative action to investigate matters of concern. This duty is particularly acute for an Executive Director responsible for finance. Despite acknowledging the necessity for investigation at the 162nd board meeting, and despite being subsequently appointed Executive Director, TSH took no substantive action to commission any independent investigation. [320] None of TSH's purported justifications for the CIDL Management Agreement withstand scrutiny. First, regarding financial assistance for Phase 2 of the RGP, the timeline is particularly telling. As TSH admitted under cross-examination, Phase 2 of the RGP commenced in 2005, and planning permits were issued by the Shanghai City MinHang District Planning Board in January 2006. The agreement for the first loan taken by YSL for the development of Phase 2 was entered into in March 2006. CIDL was only incorporated on 8.5.2007, and the Management Agreement executed on 25.7.2007. It is evident that Phase 2 was well underway before CIDL's existence, undermining the assertion that CIDL was necessary for Phase 2 to proceed. [321] Concerning the alleged settlement with Heng Fat, TSH admitted during cross-examination that YSL, not CIDL, paid the settlement sum of RMB52 million to Heng Fat. S/N Yvwtb2AFpk50KUgpFho0w These payments were made in tranches to “Heng Fat's nominated companies” in 2009, long after CIDL's purported involvement. Moreover, TSH was aware that Heng Fat had ceased to exist as early as 2001, approximately eight years before the settlement payments were made. Despite acknowledging the necessity of investigating Heng Fat's involvement in Phase 1, TSH abandoned this effort, citing the purportedly prohibitive cost of RM1 million - a sum approximately 25 times less than the amount paid to Heng Fat for the settlement. [322] Regarding the alleged repatriation of funds, TSH conceded during cross-examination that since his appointment to the board of Golden Plus, no funds were repatriated from Golden Plus’s Shanghai subsidiaries to Golden Plus through the CIDL Management Agreement, despite revenues exceeding RMB2.4 billion from Phase 2 of the RGP. This directly contradicts the purported justification of overcoming restrictions on repatriating funds from China. [323] Most damaging to TSH's credibility is his admission during cross-examination that his testimony in paragraph 7.8 of his witness statement - claiming that through CIDL, loans were obtained from various Chinese banks which YSL could not secure - was false. When confronted with the absence of documentary evidence supporting this assertion and presented with loan agreements between S/N Yvwtb2AFpk50KUgpFho0w YSL and its financiers, TSH admitted this misinformation was provided by TSS. This admission reveals TSH's undue reliance on information from TSS without proper verification. [324] TSH's reliance on the Special Audit Report's conclusion that “Given the successful outcome of Phase 2, it would seem that the decision to engage CIDL was a correct one for Gplus” is misplaced. As explained by PW1 Wong Koon Wai, a qualified chartered accountant, the nature of PwC's engagement was a “review” rather than an “audit” of the affairs of the Gplus Group - a crucial distinction because a review does not entail the same level of independent verification of documents and third-party confirmation required in an audit. Wong testified: “It's not a matter of PWC and what not, because of the nature of the engagement may not require verification because it's a review. It was not an audit despite the fact that the report is termed as special audit, but if you look at the engagement clearly, it is stated it is not an audit in accordance to auditing standard.” [325] ST Goh's testimony during re-examination is particularly revealing. He candidly acknowledged that his apprehensions over his execution of the unamended Addendum led to his resignation as a director of Golden Plus in June 2013, whereupon he transferred responsibility to TSH. According to ST Goh, he advised TSH to liaise directly with TSS for explanations regarding S/N Yvwtb2AFpk50KUgpFho0w the unamended Addendum, and it was up to TSH whether to affirm the same: “I told Tan Say Han 'Look, this Addendum is signed, but without... Soon Seng said he will explain to you if you call him. If you want to get the detail, you call him'. So I said 'I'm out, the next board meeting will be in July. I resigned in June. You handled it whether you affirm and approved or not, you're the board now, not me'“. Following ST Goh's resignation and TSH's appointment as Executive Director, the board affirmed and approved the unamended Addendum. [326] In conclusion, TSH's conduct reflected a significant failure to protect and preserve the assets of Golden Plus and its subsidiaries. Despite clear red flags raised during board meetings, and despite his acknowledgment of the need for investigation, TSH took no meaningful steps to scrutinise the CIDL Management Agreement and its Addendum. His unquestioning acceptance of TSS’s representations, his failure to verify critical information, and his inaction in the face of potentially serious breaches of duty by TSS demonstrate that he fell significantly short of the standard of care required of a director, particularly one responsible for financial management. Accordingly, I find that TSH breached his fiduciary duties to Golden Plus in relation to the CIDL Management Agreement and its Addendum. S/N Yvwtb2AFpk50KUgpFho0w TSS’s Beneficial Ownership of CIDL and CIDL's Non-Involvement in the RGP [327] TSH contends that the doctrine of separate legal entity precludes an individual from distributing company property, arguing that TSS’s mention of CIDL's receivables in his Wills does not prove ownership from incorporation. He challenges the reliability of PW1's testimony, characterising it as based on limited investigations rather than personal knowledge. TSH further argues that the testimony of PW2-PW4 regarding CIDL's non-involvement is incomplete and lacks objectivity, as these witnesses had limited visibility into CIDL's broader contributions. TSH points to various documents which he claims demonstrate CIDL's involvement in the RGP. He maintains that he had no personal knowledge of TSS’s beneficial interest in CIDL prior to these proceedings, and that as a director, he was entitled to rely on information provided by senior management and legal counsel without conducting independent investigations. [328] The Plaintiffs contend that TSS was the beneficial owner of CIDL from its incorporation, evidencing a clear conflict of interest in the CIDL Management Agreement and its Addendum. They assert this ownership is established through multiple lines of evidence, including TSS’s 2014 and 2017 Wills, which bequeathed receivables from CIDL to designated beneficiaries. The Plaintiffs further maintain S/N Yvwtb2AFpk50KUgpFho0w that CIDL had no substantive involvement in the development of the RGP, as confirmed by four witnesses with direct knowledge of the project: PW1 Wong Koon Wai, PW2 Yang Li Ru, PW3 Xu Jie, and PW4 Zhao Li Sheng. They argue that TSS fabricated a paper trail to create the illusion of CIDL's involvement, thereby facilitating the diversion of funds without actual service delivery. Additionally, the Plaintiffs assert that TSH was made aware of TSS’s connection to CIDL during the 164th board meeting on 14.5.2013, when Krishna Kumar briefed the board that CIDL was established by his law firm based on TSS’s instructions. [329] Having carefully examined the evidence, I find that TSS was indeed the beneficial owner of CIDL from its incorporation, and that CIDL had no substantive involvement in the development of the RGP. The evidence of TSS’s ownership is compelling and multi-faceted. TSS’s 2014 and 2017 Wills explicitly bequeathed the receivables of CIDL, demonstrating his understanding that he controlled these assets. TSH's argument that the doctrine of separate legal entity prevents such bequests misses the point - the significance of the Wills lies not in their legal efficacy but in their evidentiary value as an acknowledgment by TSS himself of his beneficial ownership. Moreover, DW9 Huang's Statutory Declaration confirms that he signed documents for CIDL at TSS’s behest, further indicating TSS’s control over S/N Yvwtb2AFpk50KUgpFho0w [330] The question of CIDL's involvement in the RGP has been convincingly addressed by witnesses with direct knowledge of the project's operations. PW4 Zhao Li Sheng, who led the Business Development Department at YSL, testified that he and his team secured extensions for the development period from the Shanghai Housing & Land Management Board in 2005, contradicting the claim that CIDL played a role in preventing land confiscation. DW5 Michael Lee, despite being called as a defence witness and serving as the Project Manager for Phases 1 to 4 of the RGP, confirmed in his email that he had not seen any evidence of CIDL's involvement in the project. The argument that Michael Lee's confirmation lacks credibility because he had not read the Management Agreement is unpersuasive - as Project Manager, Lee was uniquely positioned to observe CIDL's presence or absence in the project's day-to-day operations, regardless of his familiarity with contractual terms. [331] The chronology of events further undermines claims of CIDL's involvement. As revealed during TSH's cross-examination, Phase 2 of the RGP commenced in 2005, with planning permits issued in January 2006 and financing secured in March 2006. CIDL, however, was only incorporated on 8.5.2007, with the Management Agreement executed on 25.7.2007. This timeline definitively establishes that Phase 2 was well underway before CIDL's existence, contradicting any claim that S/N Yvwtb2AFpk50KUgpFho0w CIDL was instrumental in the project's initiation or early development. [332] Regarding the settlement with Heng Fat, TSH admitted during cross-examination that YSL, not CIDL, paid the RMB52 million settlement. This directly contradicts the assertion that CIDL facilitated the resolution of issues with Heng Fat. Furthermore, TSH acknowledged awareness that Heng Fat had ceased to exist in 2001, approximately eight years before the settlement payments were made, raising serious questions about the legitimacy of these transactions. [333] As for TSH's knowledge of TSS’s interest in CIDL, the evidence is clear. During the 164th board meeting on 14.5.2013, Krishna Kumar explicitly informed the board that CIDL was established by his law firm based on TSS’s instructions, a fact TSH admitted knowing during cross-examination. This revelation, combined with other red flags raised during multiple board meetings, should have prompted TSH to investigate the relationship between TSS and CIDL, particularly given his subsequent appointment as Executive Director (Finance & Administration) in June 2013. [334] TSH's argument that he was entitled to rely on information provided by senior management without conducting independent investigations is inconsistent with established legal principles. As articulated in S/N Yvwtb2AFpk50KUgpFho0w Charterbridge Corporation Ltd v Lloyds Bank Ltd [1970] Ch 62 (Chancery Division of the English High Court), directors must apply an objective test when discharging their duties stating “... an intelligent and honest man in the position of the director of the company concerned, could in the whole of the existing circumstances have reasonably believed that the transactions were for the benefit of the company.” The facts before TSH - including Krishna Kumar's revelation about CIDL's establishment, the board's expressed concerns about the Addendum, and the absence of evidence substantiating CIDL's contributions - should have prompted a reasonable director to investigate further, especially one with financial oversight responsibilities. [335] The suggestion that the Plaintiffs' investigations were insufficient because they did not interview all former directors is without merit. As PW1 Wong Koon Wai explained, the decision not to interview every former director was based on their review of available documents, the fact that PwC had previously interviewed these directors, and their desire for an independent investigation. It is particularly noteworthy that none of the Defendants saw fit to call any of these former directors as witnesses or add them as third parties to these proceedings, undermining their criticism of the Plaintiffs' investigative approach. S/N Yvwtb2AFpk50KUgpFho0w [336] In conclusion, the evidence overwhelmingly supports the finding that TSS was the beneficial owner of CIDL from its incorporation, that CIDL had no substantive involvement in the development of the RGP, and that TSH failed to discharge his fiduciary duties by not investigating TSS’s interest in CIDL despite clear indications of impropriety. The CIDL Management Agreement and its Addendum were vehicles through which company assets were diverted without corresponding benefits, constituting a breach of fiduciary duties by directors who facilitated or failed to prevent these transactions. Legitimacy of the Manfield Lease Agreements [337] The Plaintiffs contend that the Manfield Lease Agreements, comprising the Agreement to Lease dated 17.5.2007 and the Addendum and Extended Lease Agreement dated 30.1.2015, were not legitimate business arrangements but rather vehicles designed to siphon funds from the Gplus Group to entities controlled by TSS. They argue that the justifications offered by TSH for these agreements - namely, to overcome fund repatriation challenges and to avoid persistent losses from Dino Beach Water Park - lack commercial sense and are contradicted by TSH's own testimony. The Plaintiffs highlight TSH's inconsistent explanations regarding fund repatriation restrictions and assert that no rational business entity would agree to assume ongoing operational losses while simultaneously paying GCE a S/N Yvwtb2AFpk50KUgpFho0w guaranteed RM1.8 million annually, with the agreement extended for another ten years in 2015. [338] TSH maintains that the Manfield Lease Agreements served legitimate business purposes. He claims the dominant purpose was twofold: first, to overcome Golden Plus’s difficulties in repatriating funds generated from the operation of Dino Beach Water Park out of the PRC; and second, to shield the Gplus Group from persistent losses incurred from the operation of the Dino Beach Water Park. He further relies on letters from Messrs Gallant and GCE dated 29.1.2019 and 25.3.2019 respectively as evidence of Manfield's performance under the agreements. TSH also argues that the Plaintiffs were selective in naming defendants, highlighting that his co-directors at the material time are not parties to this suit. [339] Having carefully considered the evidence, I find that the Manfield Lease Agreements lacked legitimate commercial purpose and were instruments designed to divert funds from the Gplus Group. TSH's explanation regarding fund repatriation restrictions is fundamentally inconsistent and illogical. In his witness statement, he testified that foreign-owned companies in China cannot repatriate funds out of the PRC unless all liabilities are fully settled and the company was dissolved. However, under cross-examination, he shifted his position, claiming instead that funds could not be repatriated by Shanghai Roxy to its parent company, GCE, because GCE was incorporated S/N Yvwtb2AFpk50KUgpFho0w in Hong Kong. This inconsistency undermines his credibility. [340] More significantly, TSH's revised explanation defies logic. When confronted with the obvious contradiction - if Shanghai Roxy could not repatriate funds to GCE due to its incorporation in Hong Kong, how could it repatriate funds to Manfield, which is similarly a Hong Kong company - TSH's response was that he did not know and “didn't want to find out” This admission is particularly damaging, as it reveals either a profound lack of understanding of the transactions he approved as Executive Director (Finance & Administration) or a deliberate avoidance of inquiry into their legitimacy. Neither scenario is consistent with the discharge of fiduciary duties expected of a director. [341] The second justification offered by TSH - that the Manfield Lease Agreements were executed to avoid persistent losses from Dino Beach Park - similarly lacks commercial credibility. The arrangement purportedly required Manfield to assume the ongoing operational losses of the Park while simultaneously paying GCE a guaranteed RM1.8 million annually, with the agreement subsequently extended for another ten years in 2015. No commercial rationale was presented for why a third-party entity would willingly undertake such a significant financial burden without any apparent benefit or upside. The absence of commercial logic strongly suggests these S/N Yvwtb2AFpk50KUgpFho0w transactions were not arm's length arrangements but rather vehicles for diverting funds. [342] This conclusion is reinforced by the evidence regarding the establishment of Manfield and its capacity to perform. ST Goh demonstrated a willful disregard for whether Manfield existed at the time GCE authorised entering into the Manfield Lease Agreements, Manfield's capacity to perform under the agreement, and Manfield's overall track record. This cavalier approach to a significant commercial arrangement worth millions of ringgit is inconsistent with the care and diligence expected of directors managing corporate assets. [343] TSH's attempt to rely on letters from Messrs Gallant and GCE dated 29.1.2019 and 25.3.2019 as evidence of Manfield's performance must be rejected. This evidence was neither pleaded, put to the Plaintiffs' witnesses during cross-examination, nor raised by TSH in his testimony. As such, its introduction in closing submissions violates the rule in Browne v Dunn, which requires that a party's case be expressly put to the opponent's material witnesses during cross-examination. This principle was articulated by Gopal Sri Ram JCA (as His Lordship then was) in Aik Ming (M) Sdn Bhd v Chiang Chia Chuen [1995] 2 MLJ, where he emphasised that this rule “is not merely a technical rule of evidence, it is a rule of essential justice” that prevents surprise at trial and the miscarriage of justice. The Plaintiffs' witnesses, S/N Yvwtb2AFpk50KUgpFho0w particularly PW1, were denied the opportunity to address the implications of these letters on the claim that Manfield did not perform under the agreements. [344] TSH's argument that the Plaintiffs were selective in naming defendants, highlighting that his co-directors at the material time are not parties to this suit, is irrelevant to the merits of the Plaintiffs' case against him. If TSH believed these co-directors were necessary parties, he had procedural avenues available - either bringing a third-party action against them or seeking leave to join them as defendants pursuant to Order 15, rule 16 of the Rules of Court, 2012. His failure to pursue these remedies undermines the sincerity of this objection. [345] In conclusion, the evidence overwhelmingly supports the finding that the Manfield Lease Agreements lacked legitimate commercial purpose and were instruments designed to divert funds from the Gplus Group to entities controlled by TSS. TSH's inconsistent and illogical explanations regarding fund repatriation, the commercially irrational structure of the agreements, and the failure to conduct basic due diligence on Manfield's existence and capacity all point to these transactions being vehicles for fraud rather than genuine business arrangements. As Executive Director (Finance & Administration), TSH either knew or ought to have known of these irregularities, and his facilitation of these S/N Yvwtb2AFpk50KUgpFho0w transactions constituted a breach of his fiduciary duties to Golden Plus and its subsidiaries. Fraudulent Share Allotment to Maintain Control of Golden Plus [346] The Plaintiffs contend that the issuance and allotment of 46,196,995 shares in Golden Plus to Eng in August 2020 was not a legitimate business transaction to settle debts owed to CIDL but rather a fraudulent scheme orchestrated by TSH and other defendants to maintain control of Golden Plus regardless of the outcome of pending court proceedings. They assert that despite TSH's narrative about urgent repayment demands from CIDL, the evidence reveals no legitimate pressure to settle the GPlus Loan at that specific time. The Plaintiffs highlight TSH's admission under cross-examination that he took no steps to pay off the loan until August 2020, allowing it to accumulate interest at 12% per annum for four years. They further argue that the WeChat messages TSH relies upon do not demonstrate any demand for repayment, but instead reveal conversations about unrelated matters. The Plaintiffs also point to emails and WhatsApp messages between Andrew, TSH, Maria, and Valarie that reveal the true intention behind the share allotment - to create the largest single-block majority in Golden Plus, thereby diluting existing shareholding and subverting the potential adverse outcome of the Adjourned EGM Actions. S/N Yvwtb2AFpk50KUgpFho0w [347] TSH maintains that the share allotment was a legitimate transaction to address Golden Plus’s financial situation. He submits that following CIDL's rejection of Golden Plus’s request for extension of time for repayment in December 2017, the Board had been “constantly seeking and/or looking into all possible steps to settle the financial situation of the company.” TSH claims CIDL contacted him demanding repayment of the substantial debt, referencing WeChat messages between him and Huang as evidence. He presents a narrative wherein he offered Golden Plus shares as settlement, but CIDL preferred cash repayment, leading him to approach Eng about purchasing the shares. TSH argues that CIDL's letter of acknowledgment dated 26.8.2020 conclusively evidences that Golden Plus’s indebtedness under the GPlus Loan was discharged, and whether CIDL received the “Advance” had nothing to do with Golden Plus’s interests. He further contends there is no evidence that the defendants knew what the outcome of the Adjourned EGM Actions would be, and that without the allotment, CIDL would have enforced the debt with dire consequences for Golden Plus. [348] Having carefully considered the evidence, I find TSH's account of the share allotment lacks credibility and is contradicted by the documentary evidence. TSH's assertion regarding the urgency to repay the GPlus Loan is directly contradicted by his own admission under cross-examination. When asked whether he took any steps to S/N Yvwtb2AFpk50KUgpFho0w pay off the loan until the purported issuance and allotment of shares to Eng in August 2020, TSH candidly admitted: “Yes, agree. I can't afford to pay, yes”. This admission reveals that for four years, TSH took no action to address the loan despite its substantial interest rate of 12% per annum. The sudden urgency to settle the debt in August 2020 - coinciding precisely with the imminent decision in the Adjourned EGM Actions - cannot be dismissed as mere coincidence. [349] The WeChat messages TSH relies upon to demonstrate CIDL's demand for repayment do not support his contention. A careful examination of these messages reveals discussions about other matters, including Huang's contempt for an individual identified only as “g,” a personal loan provided by Huang to Andrew, and Huang's inquiry on 12.8.2020 (the day after the Kuala Lumpur High Court was scheduled to deliver its decision on the Adjourned EGM Actions) about whether they were “winning” in Malaysia. Notably absent from these messages is any demand for repayment of the GPlus Loan. The timing of Huang's inquiry - asking “Malay [Malaysia]. Is everything smooth? Are we winning?” - is particularly revealing, as it demonstrates the connection between the share allotment and the pending court decision rather than any genuine financial pressure. S/N Yvwtb2AFpk50KUgpFho0w [350] TSH's narrative that he offered Golden Plus shares as settlement but CIDL preferred cash payment, leading him to approach Eng, is uncorroborated by any documentary evidence. No letters, emails, WhatsApp or WeChat messages between TSH and Huang or Eng were presented to substantiate this account. Moreover, Eng - a critical witness who could have corroborated TSH's version of events - was not called to testify. This failure to call a material witness who could have supported TSH's account warrants an adverse inference, following the principle that a party's unexplained failure to call a witness who could elucidate disputed facts permits the court to infer that the witness's testimony would have been unfavorable to that party. [351] Most damaging to TSH's credibility is CIDL's subsequent conduct in the Interpleader Action before the Kota Kinabalu High Court, where CIDL explicitly denied settlement of the GPlus Loan and sought possession of the 23 Titles that served as security. This conduct directly contradicts the letter of acknowledgment dated 26.8.2020 that TSH relies upon as “conclusive evidence” of debt discharge. The inconsistency can only be explained by acknowledging that the letter was a facade - both its author (Huang) and recipients (Andrew and TSH as directors of Golden Plus) were fully aware that CIDL would not and did not receive the Advance of RM9,239,399. The letter appears to have been created solely to facilitate the issuance and allotment of shares to S/N Yvwtb2AFpk50KUgpFho0w Eng without consideration, before these shares were transferred to a third party, Duwee, as planned. [352] The timing of the share allotment is particularly significant. It occurred on the eve of Justice Ahmad Fairuz's decision on the Adjourned EGM Actions, which would determine the legitimate composition of Golden Plus’s board following the EGM held on 6.3.2020. This timing strongly suggests the share allotment was not a response to financial pressures but rather a strategic manoeuvre to maintain control regardless of the court's decision. As the Plaintiffs correctly observe, it was precisely because of the uncertainty of their fate on the board that the defendants activated various schemes, including the fraudulent share allotment, to create the largest single-block majority in Golden Plus, thereby diluting existing shareholdings. [353] TSH's argument that CIDL would have enforced the debt with dire consequences absent the share allotment ignores a critical fact - Andrew and Valarie had the power to control and direct CIDL, as TSS’s heirs and beneficiaries. They had the prerogative to refrain from enforcing the alleged debt. The fact that enforcement became a priority only when their control of Golden Plus was threatened undermines any claim of legitimate financial pressure. S/N Yvwtb2AFpk50KUgpFho0w [354] In conclusion, the evidence overwhelmingly supports the finding that the share allotment was not a legitimate business transaction but a fraudulent scheme designed to maintain control of Golden Plus regardless of the outcome of pending court proceedings. TSH's inconsistent explanations, the absence of documentary evidence supporting his narrative, the timing of the transaction, and CIDL's subsequent denial of settlement all point to a coordinated attempt to subvert proper corporate governance through improper means. I therefore find that TSH participated in the fraudulent allotment of shares to Eng, constituting a breach of his fiduciary duties and furthering the conspiracy to defraud Golden Plus and its legitimate shareholders. Attempted Conversion of Title Deeds [355] The Plaintiffs contend that TSH and his co-defendants attempted to fraudulently convert 23 title deeds held by Messrs Yap & Chin as stakeholders for the GPlus Loan in August 2020, just days before the Kuala Lumpur High Court was scheduled to deliver its decision on the Adjourned EGM Actions. They assert that the inconsistent instructions given to Messrs Yap & Chin on 13.8.2020, 14.8.2020, and 17.8.2020 reflect a desperate attempt to secure valuable company assets before potentially losing control of Golden Plus. The Plaintiffs highlight that TSH and Andrew provided contradictory explanations for seeking the titles, with TSH claiming the S/N Yvwtb2AFpk50KUgpFho0w GPlus Loan had been fully settled (despite no Settlement Agreement having been executed) while Andrew testified the titles were required for a joint venture with MKH Berhad. The Plaintiffs further argue that WhatsApp messages between the defendants reveal that TSH and Andrew routinely drafted letters on CIDL's behalf, with Huang merely “chopping and signing” them without real knowledge of their content, demonstrating the collusive nature of their conduct. [356] TSH contends that as directors of Sri Serdang, he and Andrew had the authority to request the return of the 23 title deeds in view of CIDL's debt (i.e., the GPlus Loan) having been fully settled. He maintains that the collection of the titles was in the best interest of Sri Serdang to preserve and protect the rights and interests of Sri Serdang and/or Golden Plus over the 23 parcels of land. [357] Having carefully examined the evidence, I find that TSH's attempt to secure the release of the 23 title deeds was not a legitimate business action but part of an orchestrated scheme to misappropriate valuable company assets. The timing of this attempt - in mid-August 2020, immediately before the Kuala Lumpur High Court was scheduled to deliver its decision on the Adjourned EGM Actions - strongly suggests an urgent effort to secure these assets before potentially losing control of Golden Plus. This timing cannot be dismissed S/N Yvwtb2AFpk50KUgpFho0w as coincidental, particularly when considered alongside the contemporaneous share allotment discussed earlier. [358] The documentary evidence reveals a troubling pattern of inconsistent instructions given to Messrs Yap & Chin, the stakeholders holding the 23 title deeds. On 13.8.2020,
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14.8.2020, and 17.8.2020 - just days apart - conflicting directions were provided regarding the release of these titles. The defendants vacillated between requesting the release of the titles to CIDL or to Sri Serdang, ultimately causing Messrs Yap & Chin to file an Interpleader Action due to these contradictory demands. Such inconsistency is incompatible with legitimate business conduct and instead reflects improvisation in response to obstacles. [359] TSH's justification for demanding the release of the 23 title deeds to Sri Serdang on 17.8.2020 - namely, that the GPlus Loan had been fully settled - lacks credibility for several reasons. First, this demand came just three days after instructing Messrs Yap & Chin to release the titles to CIDL, an unexplained reversal that suggests ulterior motives. Second, and most critically, the Settlement Agreement had not even been executed at the time of this demand. No documentary evidence was presented showing that an agreement in principle had been reached to settle the GPlus Loan, nor any documentation evidencing negotiations of the Settlement Agreement between Eng, CIDL, and Golden Plus as of 17.8.2020. The absence of such fundamental documentation S/N Yvwtb2AFpk50KUgpFho0w undermines TSH's claim that the loan had been “fully settled.” [360] The contradictory explanations provided by the defendants further erode their credibility. While TSH claimed the titles were sought because the GPlus Loan had been settled, Andrew testified that the 23 title deeds were required for a joint venture with MKH Berhad. Huang's testimony reflected a glaring lack of knowledge on this issue - he was unable to clarify who appointed Messrs Yap & Chin in the first place, despite their role as CIDL's stakeholders, and gave inconsistent accounts about the purpose of collecting the titles. Huang initially testified that CIDL and Golden Plus had resolved the loan, but later claimed the titles were needed for “somebody” or “the developer” to proceed with development, which would purportedly allow Golden Plus to repay CIDL the “RM92 million” owed. This latter claim is particularly revealing, as it contradicts the narrative advanced by TSH and Andrew about the urgent need to repay CIDL in cash before the High Court's decision. If CIDL was genuinely willing to wait for future proceeds from land development, the urgency to allot shares and secure titles in August 2020 is inexplicable except as an attempt to secure assets before a potentially adverse court ruling. S/N Yvwtb2AFpk50KUgpFho0w [361] Perhaps most damning is the evidence showing how CIDL was manipulated by TSH and Andrew. The WhatsApp messages between Andrew and TSH discussing the issuance of CIDL's letter of 17.8.2020 to Messrs Yap & Chin reveal their control over CIDL's communications. In one message, Andrew asks TSH to “Get the letters that Chris wanted,” to which TSH replies, “It's already ready. You have signed the GP and SS ones. And we have the CIDL one already.” Later, TSH confirms, “Fauzei is drafting the CIDL letter. I will forward to Huang to have it chop n sign.” Similarly, WhatsApp messages between Fauzei (Sri Serdang's manager) and TSH show them generating another CIDL letter around 14.8.2020 for the release of 14 title deeds held as security for the Sri Serdang Loan. TSH confirmed at trial that Fauzei took instructions from him and Andrew. These exchanges demonstrate that TSH and Andrew had unfettered access to CIDL's letterhead and routinely drafted letters on CIDL's behalf, with Huang merely affixing his signature and company stamp without meaningful input or oversight. [362] Huang's testimony under cross-examination further confirms this arrangement. His feeble attempts to justify signing letters and a Power of Attorney sent from Malaysia without real knowledge of their content reinforces the conclusion that CIDL was being used as a tool by TSH and Andrew to advance their own interests S/N Yvwtb2AFpk50KUgpFho0w rather than functioning as an independent commercial entity asserting legitimate rights. [363] The conduct surrounding the attempted conversion of title deeds must be viewed in context with the other actions taken by TSH during this period, particularly the fraudulent share allotment and the timing immediately before the High Court's decision on the Adjourned EGM Actions. Collectively, these actions form a coherent pattern aimed at securing control over Golden Plus and its valuable assets regardless of the outcome of the pending court proceedings. [364] In conclusion, I find that TSH's attempt to secure the release of the 23 title deeds was not a legitimate business action taken in Sri Serdang's best interests, but rather part of a broader conspiracy to misappropriate company assets before potentially losing control of Golden Plus. The inconsistent instructions to Messrs Yap & Chin, the contradictory explanations for seeking the titles, the absence of documentation supporting the alleged settlement, and the WhatsApp messages showing manipulation of CIDL all support this finding. TSH's conduct in this matter constitutes a breach of his fiduciary duties and furthers the conspiracy to defraud Golden Plus and its legitimate shareholders. S/N Yvwtb2AFpk50KUgpFho0w Attempted Winding-Up of Golden Plus and False Allegations Against Jason Teo [365] The Plaintiffs contend that TSH and his co-defendants undertook coordinated efforts to seize control of Golden Plus and its subsidiaries with the ultimate aim of winding up the company. They argue that these actions were not legitimate business decisions but part of a broader conspiracy to preserve the proceeds of fraud in TSS’s estate. The Plaintiffs highlight TSH's own admission under oath in Suit 443, reaffirmed during cross-examination in the present suit, that the allegations made against Jason Teo (Golden Plus’s duly appointed Corporate Representative for its investments in China) were false and had been levelled with the collateral motive of seizing control of Golden Plus and its subsidiaries in Hong Kong and Shanghai. They assert that despite Jason Teo being fully vindicated by both the High Court and Court of Appeal, TSH continues to use these discredited allegations to justify his actions, and disingenuously characterises the attempt to wind up Golden Plus as a “corporate rescue effort.” [366] TSH maintains that his actions were legitimate and taken in Golden Plus’s best interests. He argues that it was appropriate for him and Andrew to seek advice from Dr. TL Wong of Livingstone and Lawyer Zhong on possible actions against Jason Teo and Gary Kuo for their alleged wrongdoings. TSH contends that this advice was sought S/N Yvwtb2AFpk50KUgpFho0w for legitimate purposes in anticipation of a shareholders' tussle, and that winding up Golden Plus might have been a viable option to “rescue” the company's China investments given its condition at the time. He characterises these efforts as reasonable decisions based on professional advice aimed at preserving Golden Plus’s interests. [367] Having carefully examined the evidence, I find TSH's justifications for his actions wholly unconvincing and contradicted by his own admissions. Most damning is TSH's acknowledgment during cross-examination that the allegations made against Jason Teo in OS 354 were false. The transcript reveals that TSH admitted these allegations were levelled with the collective motive of seizing control of Golden Plus and its subsidiaries, and that Jason Teo has been “fully vindicated” by both the High Court and Court of Appeal. This admission fundamentally undermines TSH's claim that he was acting in good faith to address legitimate concerns about Jason Teo's conduct. One cannot simultaneously admit to making false allegations and claim to be acting in the company's best interests. [368] The timing and context of these actions are particularly revealing. They occurred after TSH and his co-defendants lost control of the Golden Plus board following the EGM on 6.3.2020, where shareholders unanimously voted to reconstitute the board. Rather than accepting S/N Yvwtb2AFpk50KUgpFho0w this democratic corporate decision, TSH and his co-defendants engaged in multiple efforts to subvert it, including the fraudulent share allotment and attempted conversion of title deeds discussed earlier. The consultation with Dr. TL Wong about winding up Golden Plus must be viewed in this context - not as a good faith exploration of corporate rescue options, but as a desperate attempt to maintain control over valuable assets after losing legitimate authority. [369] TSH's characterisation of the winding-up plan as a “corporate rescue effort” defies commercial logic. Winding up the parent company would not preserve or enhance the value of its subsidiaries' assets; rather, it would likely trigger cross-default provisions in various agreements and potentially lead to catastrophic commercial consequences. No reasonable director genuinely concerned with preserving company value would consider winding up as a first resort rather than exploring restructuring, refinancing, or other less drastic alternatives. The absence of evidence showing consideration of such alternatives further undermines TSH's claim that he was motivated by legitimate business concerns. [370] Moreover, the notion that these actions were taken in “anticipation of a shareholders' tussle” is disingenuous. The shareholders had already spoken clearly and unanimously at the EGM on 6.3.2020. What TSH S/N Yvwtb2AFpk50KUgpFho0w characterises as “anticipation” was in reality a reaction to the loss of control and an attempt to circumvent the shareholders' lawful decision. This represents a fundamental breach of corporate democracy and the fiduciary obligation to respect shareholders' legitimate decisions. [371] TSH's reliance on Dr. TL Wong's advice cannot shield him from liability. Directors cannot abdicate their fiduciary duties by blindly following external advice, particularly when that advice serves impermissible ends. The fact that TSH sought advice on how to remove Jason Teo - based on allegations he has now admitted were false - and on winding up the company after losing board control speaks more to the ulterior motive behind seeking such advice than to its legitimacy. [372] The evidence overwhelmingly supports the conclusion that TSH's efforts to make false allegations against Jason Teo and his exploration of winding up Golden Plus were not legitimate business decisions but components of a broader conspiracy to maintain control over company assets regardless of shareholders' wishes. These actions constituted serious breaches of TSH's fiduciary duties to Golden Plus and further the conspiracy to defraud the company and its legitimate shareholders. I therefore reject TSH's justifications and find that the Plaintiffs have established this aspect of their claim. S/N Yvwtb2AFpk50KUgpFho0w Reliability and Weight of the Plaintiffs' Expert Evidence [373] The Plaintiffs contend that the expert evidence provided by Martin Wong and Sajjad Akhtar is reliable, methodologically sound, and should be accorded appropriate weight in determining the issues before the court. They emphasise that Martin Wong, a Hong Kong barrister, provided expert testimony on Hong Kong company law regarding the validity of the CIDL Management Agreement on the assumption that TSS had an undisclosed interest in CIDL. The Plaintiffs assert that experts commonly rely on factual assumptions, and the relevance of Wong's testimony depends on the court's factual findings regarding TSS’s interest in CIDL. Regarding Sajjad Akhtar, the Plaintiffs highlight that his investigation focused on the operational realities of the RGP rather than merely board-level decisions, involving interviews with key personnel and review of original project documents in Shanghai. The Plaintiffs cite Maju Ikan Sdn Bhd v Barclays Bank Plc, which established that when only one expert opinion is available, the court should not dismiss it outright without first determining if it is clearly without merit and unsupported by the fundamental facts of the case. [374] TSH challenges the reliability of the Plaintiffs' expert evidence, suggesting that Martin Wong's testimony should be treated with “extra precaution” because it was premised on factual assumptions. Regarding Sajjad S/N Yvwtb2AFpk50KUgpFho0w Akhtar, TSH submits that he failed to act independently while conducting his investigation and delivering his findings in his expert report. TSH produced no expert evidence of his own to contradict the Plaintiffs' experts. [375] Having carefully considered the submissions and evidence, I find the Plaintiffs' expert evidence reliable and worthy of significant weight in determining the issues before the court. The principle articulated in Maju Ikan Sdn Bhd v Barclays Bank Plc is directly applicable to this case. As stated by the court, where only one expert opinion is available, the court should not reject that opinion outright without judicially considering “whether it is obviously indefensible and unsupported by the basic facts of the case.” TSH has produced no expert evidence to contradict the Plaintiffs' experts, and upon examination, their evidence is neither indefensible nor unsupported by the basic facts. [376] Regarding Martin Wong's expert testimony, it is entirely appropriate for him to base his opinions on factual assumptions. This is standard practice in expert evidence across jurisdictions. The fact that Wong was instructed to assume that TSS had an interest in CIDL and the CIDL Management Agreement, and that this interest was not disclosed, does not undermine the validity of his legal analysis under Hong Kong law. Courts routinely separate factual findings (which are the court's province) from the legal consequences that flow from those facts (on which S/N Yvwtb2AFpk50KUgpFho0w expert guidance may be appropriate). Wong's evidence provides valuable guidance on the legal consequences under Hong Kong law if the factual assumptions are proven. The court remains free to determine whether those assumptions are established on the evidence, and Wong's analysis will be relevant to the extent they are. [377] Sajjad Akhtar's evidence is particularly compelling because his investigation went beyond superficial board-level approvals to examine the operational realities of the RGP. As Akhtar explained during cross-examination, “the scope of our work was not focused on reviewing at the board level what happened but what happened on the ground as to the management in control of the project on the ground and who carried out the work, who were the personnel involved and so on and so forth. So, our focus was that at operational level, not so much whether it was approved at the board or not.” This approach is methodologically sound and addresses the heart of the issue - whether CIDL actually performed the services for which it received substantial payments. [378] During re-examination, Akhtar elaborated on his investigative approach, explaining that he sought to determine “who was responsible for obtaining the permits, engaging with the government departments, and who signed and negotiated the construction contracts.” This ground-level investigation, combined with interviews of key personnel involved in the project and review of S/N Yvwtb2AFpk50KUgpFho0w original documentation, provides a solid foundation for his conclusion that “CIDL had [no] significant role or involvement in carrying out the project.” Far from demonstrating a lack of independence, Akhtar's focus on operational realities rather than board-level paperwork shows a commitment to uncovering the truth of CIDL's actual involvement. [379] TSH's criticisms of the Plaintiffs' expert evidence appear to be generalised assertions rather than specific methodological critiques. He has not identified specific flaws in Wong's legal analysis or Akhtar's investigative approach. In the absence of competing expert evidence and without demonstrating that the Plaintiffs' expert evidence is “obviously indefensible,” TSH's objections are insufficient to diminish the weight to be accorded to these experts. [380] In conclusion, the expert evidence provided by Martin Wong and Sajjad Akhtar is methodologically sound and reliable. Wong's legal analysis based on factual assumptions is entirely appropriate, and Akhtar's ground-level investigation provides valuable insights into the actual operations of the RGP. I therefore accept their expert evidence and accord it appropriate weight in determining the issues before the court. S/N Yvwtb2AFpk50KUgpFho0w Fai Fong (12th Defendant) [381] From the facts of the case, defences relied on by Fai Fong (D12) and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether Fai Fong is liable for conspiracy to defraud Golden Plus and its subsidiaries based on her alleged participation in overt acts including calculating shareholder spreads and providing confidential company information to facilitate the fraudulent allotment of shares scheme. b) Whether Fai Fong's writing of a letter on Sri Serdang letterhead seeking the release of 23 land title documents that were charged as security for an outstanding loan constituted a breach of her duties to Golden Plus and participation in a conspiracy to injure the company. c) Whether Fai Fong's assistance in transferring possession of 58 land title documents belonging to Golden Plus subsidiaries to Andrew two weeks before the High Court's decisions on the Adjourned EGM Actions constituted a breach of S/N Yvwtb2AFpk50KUgpFho0w her duties to Golden Plus and participation in a conspiracy to injure the company. d) Whether Fai Fong's involvement in the acknowledgment of debt with CIDL and restructuring of the Sri Serdang Loan, despite her responsibilities as General Manager of Finance, constituted participation in a conspiracy to defraud the Gplus Group and a breach of her fiduciary duties. e) Whether Fai Fong's involvement in identifying a shareholder to apply for receivership over Golden Plus and facilitating the appointment of a receiver constituted a breach of her fiduciary duties to the company and participation in the conspiracy to defraud. f) Whether Fai Fong's complicity in facilitating the lodgment of lien-holder's caveats over Sri Serdang's lands, despite her knowledge of Golden Plus's inability to repay the underlying debt and CIDL's connection to TSS, constituted participation in a scheme to artificially create debt over Golden Plus and its subsidiaries and a breach of her fiduciary duties. g) Whether Fai Fong's active participation in two separate attempts to wind up Golden Plus by S/N Yvwtb2AFpk50KUgpFho0w providing financial information and identifying potential petitioning creditors constituted complicity in the conspiracy to defraud and a breach of her fiduciary duties as General Manager of Finance. h) Whether Fai Fong's preparation of shareholder calculations and charts using confidential company information for Andrew and TSH, despite knowing they had been removed as directors, constituted active participation in the conspiracy to fraudulently allot shares and a breach of her fiduciary duties to Golden Plus. i) Whether Fai Fong's preparation of a list including CIDL's legal fees to be paid by Golden Plus, when CIDL was adverse to Golden Plus in the Interpleader Action, constituted a breach of her fiduciary duties to the company and participation in the conspiracy to defraud. j) Whether Fai Fong, as General Manager of Finance of Golden Plus, owed fiduciary duties to the company despite not being a director and whether she breached those duties through her various actions and omissions that prioritized the interests of TSS and his associates over the welfare of Golden Plus. S/N Yvwtb2AFpk50KUgpFho0w k) Whether Fai Fong breached her employment contract with Golden Plus by engaging in conduct that violated express contractual clauses requiring honesty, integrity, and compliance with company policies, including providing confidential information to former directors and participating in schemes detrimental to the company. l) Whether Fai Fong's various actions including advocating for a Federal Court appeal in respect of OS 354 against legal advice, supporting unsubstantiated allegations against Jason Teo, resisting the reconstituted board's access to Golden Plus offices, and deleting important documents constituted active participation in efforts to seize control of Golden Plus beyond her legitimate role as General Manager of Finance. [382] Below is my analysis based on the issues above. Conspiracy to Defraud: Fai Fong's Involvement Through Overt Acts [383] The Plaintiffs contend that Fai Fong participated in a conspiracy with other defendants to defraud Golden Plus and its subsidiaries. They submit that while an express agreement need not be proven, Fai Fong's participation in S/N Yvwtb2AFpk50KUgpFho0w the conspiracy is evidenced by various overt acts including her involvement in the fraudulent allotment of shares exercise, where she calculated shareholder spreads for Andrew and TSH to determine if they could secure control, and provided company information to them after they had been removed as directors. The Plaintiffs argue that these actions formed part of a broader conspiracy to perpetuate fraud on the Gplus Group by seizing control of Golden Plus and its subsidiaries with the ultimate view of entrenching control and potentially winding up Golden Plus. They submit that Fai Fong's complicity is demonstrated through documented communications and her active facilitation of schemes that were detrimental to Golden Plus. [384] Fai Fong denies liability for conspiracy, contending that there was no agreement between herself and the other defendants to injure the Plaintiffs. She argues that the Plaintiffs have merely grouped the defendants together without stating particulars demonstrating an agreement or combination between them. Fai Fong further submits that the intention to injure the Plaintiffs must be specifically pleaded and has not been adequately established. She relies on the case of Renault SA v Inokom Corportion Sdn Bhd & Anor And Other Applications [2010] 5 MLJ 394 to support her position that the Plaintiffs' pleadings were insufficient to establish conspiracy. S/N Yvwtb2AFpk50KUgpFho0w [385] Having carefully considered the submissions, I find the Plaintiffs' case on conspiracy to be well-founded. It is a well-established principle of law that conspiracy, by its very nature, is committed in stealth and secrecy. Kuwait Oil Tanker makes clear that the court need not see explicit evidence of an agreement, so long as it is evident that two or more persons deliberately acted together with a shared intention to achieve a common goal. The existence of an agreement to conspire is to be inferred from the overt acts of defendants coming together at different intervals to achieve a common purpose causing injury. [386] The evidence clearly establishes that Fai Fong engaged in several overt acts that, when viewed collectively, demonstrate her participation in the conspiracy. As the General Manager of Finance of Golden Plus since November 2013, Fai Fong had intimate knowledge of the company's financial affairs. The evidence shows that she prepared charts calculating shareholder spreads for Andrew and TSH to determine whether they could secure control through the fraudulent allotment of shares. This was despite her awareness that they had been removed as directors. Her explanation that she provided this information because TSH “might still be a director” due to a Labour Department complaint lacks credibility given her experience with corporate governance and her senior position within Golden Plus. S/N Yvwtb2AFpk50KUgpFho0w [387] The case of Renault SA v Inokom Corportion Sdn Bhd relied upon by Fai Fong is distinguishable on its facts. In that case, apart from general allegations that TC Euro was the vehicle used by the 1st and 2nd defendants to conspire, there was no plea as to the exact overt acts that would implicate TC Euro. By contrast, in the present case, paragraph 51 of the SOC specifically pleads that Fai Fong conspired with other defendants to continue perpetuating fraud on the Gplus Group by her involvement in efforts to take control of Golden Plus and its subsidiaries. The pleadings further detail the overt acts relating to the fraudulent allotment of shares and creation of an artificial majority (paragraphs 52-58 of the SOC). [388] The intention to injure need not be specifically pleaded as a separate element, as such intention can be inferred from the overt acts themselves. When Fai Fong, as the General Manager of Finance, provided confidential company information to ex-directors who were seeking to regain control of Golden Plus through fraudulent means, the intention to cause injury to the company can be readily inferred. Her senior position and experience in corporate affairs meant she would have been acutely aware of the impropriety and potential harm of her actions. [389] The principles established in The King v Associated Northern Collieries [1911] 14 CLR 387 are particularly relevant here: “an unlawful conspiracy may be inferred S/N Yvwtb2AFpk50KUgpFho0w from the conduct of the parties, and if several men are seen taking several steps, all tending towards one obvious purpose, and they are seen through a continued portion of time taking steps that lead to one end, it is for the jury to say whether those persons had not combined together to bring about that end which their conduct appears so obviously adapted to effectuate.” Fai Fong's actions, when viewed in the context of the broader scheme involving Andrew, TSH, and others, clearly demonstrate a common purpose directed toward seizing control of Golden Plus through improper means. [390] For these reasons, I find that Fai Fong was a participant in the conspiracy to defraud Golden Plus and its subsidiaries. Her knowledge of company affairs, her deliberate provision of confidential information to facilitate the fraudulent allotment of shares, and her collaboration with individuals seeking to gain unlawful control of the company satisfy the elements of conspiracy. The Plaintiffs' claim against Fai Fong on this ground is therefore allowed. Fai Fong's Unauthorised Release of 23 Land Title Documents [391] The Plaintiffs contend that Fai Fong, in her capacity as General Manager of Finance of Golden Plus, participated in a conspiracy to injure Golden Plus by writing a letter dated 14.8.2020 on Sri Serdang letterhead seeking the release of 23 land title documents that were charged to S/N Yvwtb2AFpk50KUgpFho0w CIDL under the GPlus Loan. The Plaintiffs argue that Fai Fong had no authority to represent Sri Serdang, and as General Manager of Finance, she would have known that the loan with CIDL had not been discharged, making the release of the security improper. They further submit that her letter was copied to CIDL and attached a letter from CIDL authorising Andrew to collect the titles, demonstrating her active participation in a coordinated attempt to convert company assets. The Plaintiffs contend that her testimony about the titles being needed for a joint venture (“JV”) lacks credibility, as no such JV was mentioned in the letter itself, and when questioned directly about the basis for releasing titles that were security for an outstanding loan, she merely responded, “Because CIDL asked for it.” [392] Fai Fong denies any wrongdoing, contending that she was merely following instructions from Andrew and TSH, who were still directors of Golden Plus in August 2020. She argues that she did not issue the letter on her own accord but was acting in good faith pursuant to directors' instructions. Fai Fong submits that these actions were not surreptitious or concealed, and maintains that the Plaintiffs cannot complain about actions she undertook at the behest of duly appointed directors. She further asserts that her role was confined to internal operations and financial functions, that she was not involved in management decisions, and that no loss resulted from her actions. S/N Yvwtb2AFpk50KUgpFho0w [393] Having carefully considered the evidence presented at trial, I find that Fai Fong acted beyond her authority and in breach of her duties to Golden Plus when she wrote the letter seeking release of the 23 title documents. Fai Fong's testimony that she was merely following directors' instructions cannot absolve her of liability in these circumstances. As General Manager of Finance since November 2013, Fai Fong had a deep understanding of the company's financial arrangements, including the status of loans secured by company assets. The evidence establishes that she knew or ought to have known that the GPlus Loan had not been discharged when she wrote the letter seeking release of the titles. [394] The impropriety of Fai Fong's actions is particularly evident in her use of Sri Serdang letterhead despite having no authority to represent that company. She was neither a director nor an authorised signatory of Sri Serdang, yet she presented herself as having authority to make this significant request regarding valuable company assets. Her testimony under cross-examination at is telling: when asked why titles securing an outstanding loan should be released, her response was simply, “Because CIDL asked for it.” This demonstrates a willful disregard for the company's interests in favor of the interests of CIDL, a creditor whose claim remained outstanding. S/N Yvwtb2AFpk50KUgpFho0w [395] Fai Fong's claim that the titles were urgently needed for a JV is contradicted by her own testimony. When asked directly whether her letter mentioned any JV, she conceded it did not. This suggests that the JV explanation was a post-hoc rationalisation rather than the true motivation for the letter. Furthermore, the timing of this request - coming shortly before the High Court was to deliver its decision on the Adjourned EGM Action, which would determine control of Golden Plus’s board - suggests coordination with other parties attempting to remove assets from Golden Plus’s control at a critical juncture. [396] The fact that Fai Fong's letter copied CIDL and attached a letter from CIDL dated 13.8.2020 authorising Andrew to collect the titles demonstrates her participation in a coordinated effort. Particularly noteworthy is that CIDL was at this point willing to take the position that the GPlus Loan was settled, only to later argue in interpleader proceedings that the loan remained outstanding. This inconsistency further undermines the legitimacy of the entire transaction and Fai Fong's involvement in it. [397] Fai Fong's defence that her actions were “not surreptitious” misses the point. As noted in the Plaintiffs' reply submissions, there is a fundamental difference between her overt act of writing the letter and the covert intention behind it - to convert the 23 titles for the benefit of CIDL and Andrew. This distinction is crucial in S/N Yvwtb2AFpk50KUgpFho0w conspiracy cases, where, as established in Kuwait Oil Tanker which makes clear that it is unnecessary to prove the existence of a formal or explicit agreement; it is enough to demonstrate that two or more persons have deliberately collaborated, even if only implicitly, to achieve a common goal. [398] The totality of the evidence leads me to conclude that Fai Fong's actions in writing the letter seeking release of the 23 titles formed part of a concerted effort to benefit CIDL and Andrew at the expense of Golden Plus. Her claim of merely following directors' instructions cannot shield her from liability for acts that were clearly contrary to the interests of the company she served. The Plaintiffs' claim against Fai Fong on this ground is accordingly allowed. Fai Fong's Role in the Release of the 58 Land Titles to Andrew [399] The Plaintiffs contend that Fai Fong, as General Manager of Finance of Golden Plus, actively participated in an improper scheme to transfer possession of 58 land title documents belonging to Golden Plus subsidiaries to Andrew just two weeks before the High Court was scheduled to deliver its decision on the Adjourned EGM Action. This timing, the Plaintiffs argue, demonstrates that the transfer was not routine administrative action but part of a deliberate strategy to remove assets from Golden Plus’s control at a critical juncture when control of the board was at stake. The Plaintiffs point to documentary S/N Yvwtb2AFpk50KUgpFho0w evidence showing that Fai Fong personally prepared a list containing the titles and signed a handwritten note confirming that Andrew took possession of the 58 titles. [400] Fai Fong denies liability, asserting that she merely followed Andrew's instructions in his capacity as a director of Golden Plus at the material time. She contends that her actions were not surreptitious but conducted openly in the ordinary course of her duties. Additionally, Fai Fong argues that no loss was suffered by Golden Plus as a result of her actions, as the titles were ultimately recovered, suggesting that her involvement resulted in no damage to the company. [401] Having carefully considered the evidence presented, I find the Plaintiffs' case to be compelling. The evidence establishes that Fai Fong assisted Andrew by giving possession of issue documents of title for the 58 Titles to him approximately two weeks before the High Court was scheduled to deliver its decision on the Adjourned EGM Action, which would determine control of Golden Plus’s board. The timing of this transfer is particularly significant, as it coincided with a critical moment in the legal battle for control of the company. This strongly suggests that the purpose of the transfer was not routine administration but to remove valuable assets from Golden Plus’s control before a potential adverse court decision. S/N Yvwtb2AFpk50KUgpFho0w [402] The documentary evidence is unequivocal. Fai Fong prepared a list containing the titles and signed a handwritten note) confirming that Andrew took possession of the 58 titles. This contemporaneous document directly links Fai Fong to the transfer and contradicts her claim of mere passive compliance with instructions. Fai Fong's position as General Manager of Finance since November 2013, with responsibility for the financial management of all Golden Plus companies in Malaysia, means she would have understood the significance of these title documents and the impropriety of their transfer in these circumstances. [403] Fai Fong's defence that she was merely following Andrew's instructions cannot absolve her of responsibility. As a senior officer with over two decades of experience at Golden Plus, she was well aware of proper corporate governance requirements and the limits of directorial authority and must exercise independent judgment rather than blindly comply with improper directives. [404] I also reject Fai Fong's argument that no loss was suffered. While the titles may have been eventually recovered, the company incurred direct costs for their replacement and legal expenses to recover control over these assets. The Plaintiffs ought to recover these damages. S/N Yvwtb2AFpk50KUgpFho0w [405] For these reasons, I find that Fai Fong's involvement in the release of the 58 titles constituted both a breach of her duties to Golden Plus and formed part of the conspiracy to injure the company. Her actions cannot be characterised as routine compliance with directorial instructions but rather demonstrate her active participation in a scheme to remove valuable assets from Golden Plus’s control at a strategically sensitive time. The Plaintiffs' claim against Fai Fong on this ground is accordingly allowed. Fai Fong's Role in the Acknowledgment of Debt with CIDL Regarding the Sri Serdang Loan [406] The Plaintiffs contend that Fai Fong, as General Manager of Finance of Golden Plus Holdings Berhad, participated in a conspiracy to defraud the Gplus Group through her involvement in a scheme to acknowledge and restructure debt owed to CIDL. Specifically, the Plaintiffs allege that Fai Fong was complicit in an exchange of emails between Andrew, TSH, ST Goh, and Ming Toong regarding the drafting of a resolution to acknowledge a debt towards CIDL and to rewrite the Sri Serdang Loan, requiring repayment within six months from the signing of a purported joint venture agreement with MKH Berhad on the development of lands in Kajang. The Plaintiffs submit that this arrangement created a “double jeopardy” for Sri Serdang and the Gplus Group by subjecting Sri Serdang to a different repayment structure that would benefit S/N Yvwtb2AFpk50KUgpFho0w Andrew and Valarie as the ultimate benefactors of CIDL. They further assert that Fai Fong, despite her position as General Manager of Finance responsible for loans including the Sri Serdang Loan, failed to alert directors that this arrangement required CIDL's approval because she knew Andrew controlled CIDL. [407] Fai Fong denies liability, claiming she was merely copied on the emails regarding the acknowledgment of debt and did not prepare the resolution. In her submissions, she maintains that she was not substantively involved in the transaction, suggesting that “she was only copied in the e-mails.” She further contends that she had no knowledge of Andrew's control over CIDL, stating under cross-examination: “No, I didn't know at all. I don't know what they are talking about. Because everything they did was in KL and I was in KK. Only when they send out after the board discussed all these things, they will send out the resolution and ask me to get the local directors to sign.” Fai Fong also submits that no loss or damage was suffered by the Gplus Group as a result of her actions. [408] Upon careful consideration of the evidence, I find that Fai Fong's role in the acknowledgment of debt with CIDL regarding the Sri Serdang Loan demonstrates her participation in the conspiracy to defraud the Gplus Group. The documentary evidence reveals an exchange of emails between Andrew, TSH, ST Goh, and Ming Toong in which Ming Toong was requested to draft a S/N Yvwtb2AFpk50KUgpFho0w resolution acknowledging debt towards CIDL and rewriting the Sri Serdang Loan terms. This arrangement was purportedly linked to a joint venture agreement with MKH Berhad on the development of lands in Kajang, but as the Plaintiffs correctly observe, the evidence presented at trial revealed no credible joint venture agreement with MKH Berhad existed. [409] Fai Fong's claim that she was merely copied on these emails rather than actively participating in the arrangement is not persuasive when considered against her responsibilities as General Manager of Finance. As the senior financial officer responsible for, among other things, the Sri Serdang Loan, Fai Fong had an obligation to protect the financial interests of the Gplus Group. The legal principle established in R v Siracusa is particularly relevant here: participation in a conspiracy “can be active or passive” and “consent can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity.” Fai Fong's silence and failure to raise concerns about this arrangement, despite her senior financial position, constitutes tacit consent to and participation in the conspiracy. [410] Furthermore, Fai Fong's assertion under cross-examination that she “didn't know at all” about Andrew's control of CIDL lacks credibility. The evidence shows that S/N Yvwtb2AFpk50KUgpFho0w Fai Fong was aware of TSS's interest in CIDL from 2014 when she helped prepare and witnessed his Hong Kong Will and Codicil. Given Andrew's relationship as TSS’s son and his position as director of Golden Plus, it strains credulity that Fai Fong, as a senior financial officer with over two decades of experience at the company, would be unaware of Andrew's connection to CIDL. Her evasive responses during cross-examination further undermine her credibility on this point. [411] When questioned directly about whether she knew the indebtedness to CIDL would continue to be enforced with this acknowledgment of debt, ensuring the 14 titles under the Sri Serdang loan would be released and easily transferable, Fai Fong's response was notably evasive: “I don't know because to me, at that time, they were rushing for the JV.” This response demonstrates a deliberate attempt to distance herself from the implications of the arrangement that she understood well given her financial expertise. [412] With respect to Fai Fong's argument that no loss or damage was suffered, this court accepts the Plaintiffs' submission that such an argument is irrelevant in the context of the overall conspiracy to defraud. The fact that the scheme may not have reached its final objective does not absolve participants of liability for their role in the conspiracy. S/N Yvwtb2AFpk50KUgpFho0w [413] The totality of the evidence leads me to conclude that Fai Fong, as General Manager of Finance, was complicit in the attempt to create a double jeopardy upon Sri Serdang and the Gplus Group through the acknowledgment of debt with CIDL and rewriting of the Sri Serdang Loan. Her silence in the face of this arrangement, despite her senior financial position and fiduciary responsibilities, constitutes a breach of her duties to the Gplus Group and participation in the conspiracy to defraud. The Plaintiffs' claim against Fai Fong on this ground is accordingly allowed. Fai Fong's Complicity in the Appointment of Receiver over Golden Plus [414] The Plaintiffs contend that Fai Fong, as General Manager of Finance of Golden Plus, actively participated in a scheme to appoint a receiver over Golden Plus in order to assist Andrew and TSH in maintaining control of the company despite an imminent EGM to reconstitute the board. They argue that Fai Fong's involvement is evidenced by email exchanges between Golden Plus’s solicitors, Andrew, TSH, and herself, in which she explicitly identified which shareholder would apply for receivership. The Plaintiffs maintain that this conduct constituted a breach of her duties to Golden Plus, as she knowingly facilitated actions designed to injure the company rather than protect its interests. They further argue that her claim that she was merely following S/N Yvwtb2AFpk50KUgpFho0w directors' instructions is untenable given her senior position and the nature of her involvement. [415] Fai Fong denies liability, asserting that her involvement in discussions regarding the appointment of a receiver over Golden Plus was carried out “at the behest of the directors of Golden Plus and in good faith, and the Plaintiffs cannot now complain of the same.” She maintains that she lacked decision-making authority or management control within Golden Plus, and that she was merely following the instructions of Andrew and TSH, who were directors at the material time. Fai Fong further submits that since the application for appointment of receivership was ultimately dismissed, her actions constituted a “red herring” that caused no loss to Golden Plus. [416] Having carefully considered the evidence, I find Fai Fong's defence unpersuasive. The documentary evidence establishes her active participation in identifying a shareholder to apply for receivership over Golden Plus. The email exchanges demonstrate that Fai Fong, far from being a passive recipient of instructions, was providing crucial information to facilitate the receivership application. Her role is confirmed by her own testimony during cross-examination at, where she acknowledged that Ang Guit Hua was “removed from the list to enable the shareholder, Ang Guit Hua, to apply for receivership of the Golden Plus.” When confronted with the S/N Yvwtb2AFpk50KUgpFho0w significance of her involvement - “here you are, general manager of finance, Golden Plus, being involved in discussions and advice about applying for receivership over the very company that you served” - she offered no meaningful defence. [417] Fai Fong's position as General Manager of Finance placed her in a position of significant responsibility and trust within Golden Plus. As a senior officer, she owed duties of loyalty and good faith to the company, requiring her to act in its best interests rather than facilitating actions designed to undermine it. Her claim that she was merely following directors' instructions cannot shield her from liability when those instructions were manifestly contrary to the company's interests. [418] Particularly telling is Fai Fong's admission during cross-examination that the purpose of appointing a receiver was “to ensure that Andrew and TSH remained entrenched on the Golden Plus board at the Hong Kong and Shanghai level.” When questioned directly about this objective, her response - “That's what they were doing” - reveals her awareness of the true purpose behind the receivership application. This admission is devastating to her defence of good faith compliance with directors' instructions. S/N Yvwtb2AFpk50KUgpFho0w [419] Moreover, Fai Fong acknowledged that she was aware that the allegations of impropriety against Jason Teo, which formed the purported basis for the oppression action, “were dismissed by the Malaysian High Court.” Despite this knowledge, she continued to assist in efforts to appoint a receiver over Golden Plus. This demonstrates that her actions were not based on a genuine belief in misconduct requiring remedial action, but were instead part of a strategy to maintain Andrew and TSH's control over the company. [420] The fact that the application for appointment of receivership was ultimately dismissed does not absolve Fai Fong of liability. The company incurred costs defending against the receivership application and suffered disruption to its operations and governance. Fai Fong's complicity in this scheme constituted a breach of her duties to Golden Plus, regardless of whether it ultimately succeeded. [421] For these reasons, I find that Fai Fong was complicit in the attempt to appoint a receiver over Golden Plus, acting contrary to the company's interests and in breach of her duties. This conduct forms part of the broader pattern of actions taken in furtherance of the conspiracy to defraud Golden Plus and preserve the proceeds of fraud in TSS’s estate. The Plaintiffs' claim against Fai Fong on this ground is accordingly allowed. S/N Yvwtb2AFpk50KUgpFho0w Fai Fong's Complicity in the Lodgement of Caveats over Sri Serdang Lands [422] The Plaintiffs contend that the lodgment of lien-holder's caveats over Sri Serdang's lands was part of an elaborate scheme to artificially create debt over Golden Plus and its subsidiaries, with CIDL serving as the purported lender of the GPlus and Sri Serdang Loans. The Plaintiffs argue that Fai Fong, as General Manager of Finance, was complicit in this scheme, knowing that CIDL was owned by TSS and that Golden Plus faced a dire financial position that would not allow it to meet the unfavorable terms set out in those loans. They assert that Fai Fong knew there was no hope of Golden Plus repaying the debt within the stipulated timeframe but nevertheless facilitated the Supplementary Agreement to the GPlus Loan, which allowed for lien-holder's caveats to be lodged over the titles charged under the GPlus Loan. The Plaintiffs further submit that Fai Fong passively stood by and allowed the caveats to be lodged without disclosing TSS’s interest in CIDL to the board of Golden Plus. [423] Fai Fong denies complicity in the artificial creation of debt and the lodgment of caveats over Sri Serdang's lands. In her submissions, she contends that the caveats were not lodged on her instructions and denies knowledge of TSS’s ownership of CIDL. Fai Fong argues that there was no ulterior purpose to the lodgment of caveats, and during cross-examination suggested that there were S/N Yvwtb2AFpk50KUgpFho0w “other people” who knew about the circumstances surrounding the GPlus and Sri Serdang Loans, not just herself and TSS. [424] After careful consideration of the evidence and submissions, I find the Plaintiffs' case compelling on this issue. The evidence establishes that Fai Fong, as the General Manager of Finance, would have had intimate knowledge of Golden Plus's financial position. Her cross-examination is particularly revealing. When asked directly whether she knew that TSS could assert control by enforcing these debts at any time, her evasive response was “I don't know.” When further questioned about whether she knew that Golden Plus would not be able to repay those loans, she again evaded providing a direct answer, stating “But the thing is that I remembered when they issued out-” before being interrupted. When pressed that she and TSS would have been the two people aware that Golden Plus had no hope of repaying these debts, she again avoided giving a direct answer, responding “But that was discussed in the...” Her eventual response that “There could be other people knew, not many, maybe not only two” implicitly acknowledges her own awareness of the situation. [425] Fai Fong's position as General Manager of Finance placed her in a unique position to understand Golden Plus's financial affairs, including its ability to service loans. The terms of the GPlus and Sri Serdang Loans S/N Yvwtb2AFpk50KUgpFho0w required repayment within three months of the facility agreements (Facility Agreement dated 18.10.2016 and Facility Agreement dated 11.12.2017), a timeline that would have been clearly unrealistic to anyone familiar with Golden Plus's financial statements between 2017- 2020, which showed the company's insolvency status. Fai Fong's failure to advise against these onerous terms or to disclose TSS’s interest in CIDL to the board constitutes a significant breach of her duties to Golden Plus. [426] The Supplementary Agreement to the GPlus Loan, which allowed for lien-holder's caveats to be lodged over the charged titles, further burdened Golden Plus with security obligations that it could not satisfy. Fai Fong's passive acquiescence to this arrangement, despite her knowledge of Golden Plus's precarious financial situation, demonstrates her complicity in this scheme. The timing of these caveats, lodged prior to attempts to wind up Golden Plus, strongly suggests that they were part of a coordinated effort to secure assets before potential liquidation proceedings. [427] In R v Siracusa it was held that participation in a conspiracy “can be active or passive” and that “consent can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity.” Fai Fong's failure to object to S/N Yvwtb2AFpk50KUgpFho0w or prevent the lodgment of caveats, despite her position and knowledge, satisfies this test. [428] The fact that the caveats may not have been lodged on Fai Fong's direct instructions does not absolve her of responsibility. As General Manager of Finance with a duty to protect Golden Plus's interests, her passive acquiescence to these transactions that clearly disadvantaged the company constitutes complicity in the scheme. Her failure to disclose TSS’s interest in CIDL to the board, despite being aware of this connection, further evidences her participation in concealing material information that would have revealed the conflict of interest in these loan transactions. [429] For these reasons, I find that Fai Fong was complicit in the lodgment of lien-holder's caveats over Sri Serdang's lands as part of a broader scheme to artificially create debt over Golden Plus and its subsidiaries. Her actions and omissions facilitated attempts by Andrew and his associates to take possession of titles on behalf of CIDL prior to the winding up of Golden Plus and to sever the Hong Kong and Shanghai operations from their parent company. The Plaintiffs' claim against Fai Fong on this ground is accordingly allowed. S/N Yvwtb2AFpk50KUgpFho0w Fai Fong's Complicity in Attempts to Wind Up Golden Plus [430] The Plaintiffs contend that Fai Fong, as General Manager of Finance of Golden Plus, was actively complicit in two separate attempts to wind up Golden Plus in May and December 2020. They assert that Fai Fong acted in concert with Andrew and TSH, providing crucial financial information and assistance to facilitate these wind-up attempts. The Plaintiffs argue that as a senior financial officer with fiduciary responsibilities to the company, Fai Fong should have taken steps to protect Golden Plus's interests rather than actively assist former directors in attempts to liquidate the company. They further maintain that her claim of lacking locus standi to bring a winding-up petition is irrelevant, as her liability stems from her participation in the conspiracy, not her legal standing to personally file the petition. The Plaintiffs cite email exchanges documenting Fai Fong's involvement, and emphasise that the eventual failure of these wind-up attempts does not absolve her of liability for her participation in the scheme. [431] Fai Fong denies liability, maintaining that her involvement in these matters was minimal and merely administrative. She argues that, lacking locus standi to present a winding-up petition herself, she cannot be held liable for conspiracy to wind up Golden Plus. She contends that her alleged involvement in discussions about winding up Golden Plus constitutes a “red herring” since any attempt S/N Yvwtb2AFpk50KUgpFho0w to wind up Golden Plus would ultimately require a petitioning creditor, which she was not. Fai Fong further submits that since the attempt to wind up Golden Plus was ultimately unsuccessful, the Plaintiffs suffered no loss or damage and therefore have no valid claim against her. [432] I find the Plaintiffs' evidence compelling on this issue. The documentary evidence reveals Fai Fong's active participation in two separate attempts to wind up Golden Plus in May and December 2020. The December 2020 attempt is particularly revealing of her complicity in the conspiracy. Email exchanges demonstrate that Fai Fong was directly involved in identifying potential creditors who could petition for Golden Plus's winding-up, providing financial information to facilitate these actions, and collaborating with former directors who had been removed from office. When questioned about her involvement in these discussions during cross-examination, Fai Fong admitted to providing information about creditors who could potentially file winding-up petitions against Golden Plus. [433] Fai Fong's defence that she lacked locus standi to present a winding-up petition herself fundamentally mischaracterises the nature of the Plaintiffs' claim. The conspiracy to defraud does not require that each conspirator personally execute each element of the scheme. As established in R v Siracusa participation in a S/N Yvwtb2AFpk50KUgpFho0w conspiracy “can be active or passive” and “consent can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity.” Fai Fong's provision of financial information and identification of potential petitioning creditors constitutes active participation in the conspiracy, regardless of whether she personally had standing to file the petition. [434] Particularly troubling is the timing of these winding-up attempts, which coincided with other efforts by Andrew and TSH to seize control of Golden Plus, including the fraudulent share allotment scheme and attempts to take possession of title deeds. This pattern of coordinated actions strongly suggests a common purpose to wrest control from the legitimate board appointed by shareholders on 6.3.2020, and to sever the Hong Kong and Shanghai operations from their parent company in Malaysia. Fai Fong's involvement in multiple aspects of this scheme demonstrates her commitment to this common purpose. [435] Fai Fong's position as General Manager of Finance placed her in a position of significant trust and responsibility. Her participation in efforts to wind up the very company she served, in collaboration with former directors who had been removed by shareholders, constitutes a clear breach of this trust. Her claim that she S/N Yvwtb2AFpk50KUgpFho0w was merely following directors' instructions rings hollow given that Andrew and TSH had been removed as directors at the time of these actions. [436] Furthermore, I reject Fai Fong's contention that the unsuccessful nature of the winding-up attempts absolves her of liability. Golden Plus incurred substantial costs in defending against these actions and suffered disruption to its operations and governance. [437] For these reasons, I find that Fai Fong was complicit in attempts to wind up Golden Plus as part of the broader conspiracy to defraud the Gplus Group. Her actions cannot be dismissed as merely following instructions but rather demonstrate her active participation in a scheme designed to harm Golden Plus for the benefit of Andrew, TSH, and ultimately the beneficiaries of TSS’s estate. The Plaintiffs' claim against Fai Fong on this ground is accordingly allowed. Fai Fong's Complicity in the Fraudulent Allotment of Shares through Preparation of Shareholder Calculations [438] The Plaintiffs contend that Fai Fong, as General Manager of Finance of Golden Golden Plus, actively participated in the conspiracy to fraudulently allot shares by calculating shareholding figures and preparing charts for Andrew to determine whether he and his cohorts had sufficient numbers to seize control of Golden Plus. They assert that S/N Yvwtb2AFpk50KUgpFho0w Fai Fong used confidential company information, specifically the Record of Depositors, to prepare these calculations, which she then provided to Andrew and TSH despite knowing they had been removed as directors of Golden Plus. The Plaintiffs argue this was a critical component of the fraudulent scheme, as without Fai Fong's assistance in calculating shareholder spreads, Andrew, Maria, Valarie, and TSH would have been “severely handicapped” in their attempt to create an artificial majority that would favor their faction. [439] Fai Fong denies substantive involvement in the fraudulent allotment scheme, contending that she was not part of communications between TSH and Andrew regarding the purpose of the calculations. In her defence she claims she merely prepared the chart at the request of Andrew and TSH without knowledge of its ulterior purpose. She further attempts to justify her provision of company information to these individuals by suggesting that TSH might still have been a director due to a complaint lodged with the Labour Department. Fai Fong also argues that since the fraudulent allotment of shares was ultimately reversed by court action, Golden Plus suffered no loss or damage from her actions. [440] Having carefully considered the evidence, I find Fai Fong's account lacks credibility and is contradicted by contemporaneous documentary evidence. The evidence clearly establishes that Fai Fong was not merely a S/N Yvwtb2AFpk50KUgpFho0w passive calculator of figures but an active participant in the fraudulent allotment scheme. When questioned during trial about the table she prepared including Eng's name, Fai Fong admitted that TSH and Andrew had specifically asked her to include Eng's name under Andrew's block. This table explicitly calculated Andrew's shareholding at 28.39% (54,823,462 shares) after taking into account the shares allotted to Eng and Duwee, demonstrating Fai Fong's awareness of the share allotment arrangement. [441] Furthermore, Fai Fong prepared a subsequent table at Andrew's and TSH's request on 4.9.2020, as evidenced by WhatsApp conversations between Andrew and TSH where Andrew commented “Looks like we are fine”. This updated table, with the revealing heading “Shares under Andrew and his allies,” included Peng as one of Andrew's allies and maintained the 46,196,995 allotted shares under Andrew for the purposes of the EGM. When questioned about this during cross-examination, Fai Fong confirmed both facts. [442] As General Manager of Finance, Fai Fong had a particular responsibility to safeguard the financial integrity of Golden Plus. Her claim during cross-examination that she was unaware whether there had been any settlement of the loan to CIDL as envisaged under the Settlement Agreement for the allotment of shares is not credible. Her response that “there's no direct instruction from the S/N Yvwtb2AFpk50KUgpFho0w directors saying that, you know, asked me what to do with the loan” indicates either a deliberate attempt to distance herself from knowledge of the fraudulent nature of the transaction or a shocking abdication of her responsibilities as General Manager of Finance. [443] I also reject Fai Fong's assertion that she provided company information to Andrew and TSH in the belief that TSH might still be a director due to a Labour Department complaint. As a senior corporate officer with experience as a director herself, Fai Fong would have been well aware of proper corporate governance requirements, including that directors removed by shareholder vote cease to have authority to act for the company regardless of any pending employment complaints. This represents the second occasion, as noted by the Plaintiffs, where Fai Fong made confidential company information available to individuals no longer authorised to receive it. [444] The fact that the fraudulent allotment of shares was ultimately reversed through court action does not absolve Fai Fong of liability for her participation in the scheme. Golden Plus incurred substantial costs in challenging the fraudulent allotment, and its corporate governance was significantly disrupted during this period. S/N Yvwtb2AFpk50KUgpFho0w [445] I therefore find that Fai Fong's preparation of shareholder calculations and charts for Andrew constituted an active contribution to the conspiracy to fraudulently allot shares and seize control of Golden Plus. Her actions amounted to a serious breach of her duties to Golden Plus and formed part of the broader conspiracy to preserve the fraud committed against the Gplus Group. The Plaintiffs' claim against Fai Fong on this ground is accordingly allowed. Fai Fong's Preparation of List Including CIDL's Legal Fees to be Paid by Golden Plus [446] The Plaintiffs contend that Fai Fong, as General Manager of Finance of Golden Plus, improperly burdened the company by preparing a list that included legal fees of CIDL to be paid by Golden Plus. They argue that this occurred in the context of the Interpleader Action, where CIDL was adverse to Golden Plus and Sri Serdang. The Plaintiffs assert that Andrew, while director of Golden Plus and Sri Serdang, funded CIDL's litigation expenses and instructed Fai Fong to include these payments in a list of “Amount due to ANDREW TEH WEI KIAN,” effectively making Golden Plus liable for expenses that harmed its interests. The Plaintiffs point to inconsistencies in Fai Fong's testimony, noting that in Suit 560 she admitted acknowledging Andrew's claim for payment to CIDL's solicitors, Messrs Wee Choo Keong & Faaiz, while in the present case she claimed ignorance S/N Yvwtb2AFpk50KUgpFho0w about the purpose of the invoice. The Plaintiffs argue that Fai Fong, as General Manager of Finance, would have known that Golden Plus should not bear such costs, and her involvement in preparing this list demonstrates her participation in the conspiracy. [447] Fai Fong denies liability, contending that she simply followed Andrew's instructions and prepared the list as directed. She claims that she had no decision-making authority within Golden Plus and was merely performing administrative duties. In her testimony during this trial, she claimed she did not know that Messrs Wee Choo Keong & Faaiz represented CIDL in the Interpleader Action and believed the invoice was “attention to Golden Plus.” When pressed further in cross-examination, she stated that Andrew told her Wee Choo Keong acted for Golden Plus. Fai Fong maintains that she did not cause any loss to Golden Plus and was acting within the scope of her role. [448] Having carefully considered the evidence, I find Fai Fong's defence untenable. The documentary evidence clearly shows that Fai Fong prepared a list titled “Amount due to ANDREW TEH WEI KIAN” which included as Item 5 a payment to Messrs Wee Choo Keong & Faaiz. This firm represented CIDL in the Interpleader Action where CIDL was adverse to Golden Plus and Sri Serdang over the release of 23 land titles. Her testimony in Suit 560 is particularly revealing. When questioned about whether S/N Yvwtb2AFpk50KUgpFho0w she queried Andrew about his claim for reimbursement of these legal fees, she stated: “He told me that it was, in order for, they wanted to get the titles from Yap & Chin, so it's supposed to be the matters between the three companies, CIDL, Golden Plus Holdings and Sri Serdang. So if any expenses that incurred, if there's any blockage or whatever, so it should not be on, no, it should be on the company's account.” This admission demonstrates that Fai Fong understood the payment related to CIDL's legal representation in the Interpleader Action. [449] Her subsequent testimony in the present case, where she claimed ignorance about the purpose of the invoice is inconsistent with her earlier admission and lacks credibility. As General Manager of Finance since November 2013, Fai Fong had substantial financial expertise and responsibility. The proposition that she would include a significant legal expense in company accounts without understanding its purpose is implausible. Her eventual claim that “Andrew told her Wee Choo Keong acted for Golden Plus” appears to be a post-hoc rationalisation that contradicts her earlier, more candid testimony. [450] Fai Fong's position as General Manager of Finance carried with it a duty to exercise independent judgment regarding financial matters and to protect the company's financial interests. It is a fundamental principle of S/N Yvwtb2AFpk50KUgpFho0w corporate finance that a company should not bear the legal costs of an opposing party in litigation. Fai Fong's willingness to burden Golden Plus with CIDL's legal expenses, knowing that CIDL was adverse to Golden Plus in the Interpleader Action, represents a serious breach of her duties. Her defence that she was merely following Andrew's instructions cannot absolve her of responsibility for actions that were manifestly contrary to Golden Plus's interests. [451] Furthermore, this action must be viewed in the context of Fai Fong's other actions during the same period, including her involvement in facilitating the release of 58 land titles to Andrew just two weeks before the High Court was due to deliver its decisions in the Adjourned EGM Actions. The timing and nature of these actions, when considered together, strongly suggest participation in a coordinated effort to benefit Andrew and CIDL at Golden Plus's expense. [452] I therefore find that Fai Fong's preparation of a list that improperly burdened Golden Plus with CIDL's legal costs constituted a breach of her duties to Golden Plus and formed part of the broader conspiracy to harm the company. The Plaintiffs' claim against Fai Fong on this ground is accordingly allowed. S/N Yvwtb2AFpk50KUgpFho0w Fiduciary Duties of a Senior Employee: General Manager of Finance [453] The Plaintiffs contend that Fai Fong, despite not being a director of Golden Plus, owed fiduciary duties to the company by virtue of her position as General Manager of Finance. They submit that the fiduciary relationship arises from her senior management role, regardless of whether she falls within the statutory duties under Section 213 of the Companies Act 2016. The Plaintiffs argue that Fai Fong breached these fiduciary duties in multiple ways, including: failing to disclose TSS interest in the CIDL Management Agreement and Manfield Lease Agreements despite having knowledge of his ownership through her assistance in preparing his 2014 Wills; failing to advise the Board that Golden Plus and Sri Serdang were in no financial position to repay the GPIus and Sri Serdang Loans within the onerous timeframes stipulated; failing to disclose TSS’s interests in these loans; providing sensitive company information for use in various legal proceedings against Golden Plus; and participating in the conversion of titles belonging to Sri Serdang and its subsidiaries. [454] Fai Fong denies that she owed fiduciary duties to Golden Plus, maintaining that as a non-director employee, she falls outside the purview of statutory duties under Section 213 of the Companies Act 2016. She contends that her role was confined to internal operations and financial S/N Yvwtb2AFpk50KUgpFho0w functions of Golden Plus, that she was not involved in making management decisions, and that she merely acted upon the instructions of the Board of Directors. As reflected in the search results from her submissions, Fai Fong argues that she reported to the Board and particularly to Andrew and TSH as directors, indicating a subordinate role without independent fiduciary obligations. [455] Upon careful consideration of the evidence and submissions, I find that Fai Fong did indeed owe fiduciary duties to Golden Plus despite not being a director of the company. The law is clear that fiduciary duties extend beyond directors to senior employees who occupy positions of trust and confidence. The scope of fiduciary duties is not confined to those expressly delineated in the Companies Act 2016 but exists in equity based on the relationship between the parties. The position of General Manager of Finance is inherently one of trust, requiring the holder to act in the best interests of the company, particularly in matters concerning the company's financial affairs. Fai Fong's role placed her at the helm of Golden Plus's financial operations, with responsibility for “planning and budgeting, finance and accounting, taxation and treasury” as stated in her letter of appointment. Such a role necessarily involved significant discretion and access to sensitive company information, creating a fiduciary relationship with Golden Plus. S/N Yvwtb2AFpk50KUgpFho0w [456] In Zainol Zakaria v UEM Builders Berhad [2019] MELRU 2695, a decision of the Industrial Court which has been affirmed by the High Court on Judicial Review, it was held that “the relationship between an employer and an employee is fiduciary in nature” and employees have “an implied duty of fidelity towards his employer as well as the duty to carry out his assigned duties faithfully.” The court emphasised that senior financial officers must present “accurate” information to management, as “suppressing the true figures... depriv[es] management of the opportunity to deliberate on the underlying problems and to make effective decisions.” Fai Fong's position as General Manager of Finance since November 2013, overseeing all of Golden Plus's Malaysian companies' finances, clearly places her within this category of senior officers owing fiduciary duties to the company. [457] The evidence establishes that Fai Fong breached these fiduciary duties in several significant ways. First, she failed to disclose TSS’s interest in CIDL despite becoming aware of this relationship when she assisted in the preparation of his 2014 Hong Kong Will and Codicil. The 2014 Will explicitly referenced CIDL as part of TSS’s estate, demonstrating Fai Fong's knowledge of this connection. Her failure to disclose this critical information to Golden Plus's Board when the company entered into loan agreements with CIDL in 2017 and 2018 constituted a serious breach of her duty of loyalty and disclosure. S/N Yvwtb2AFpk50KUgpFho0w [458] Second, as General Manager of Finance, Fai Fong would have been intimately familiar with Golden Plus's financial position. The evidence shows that the loan agreements with CIDL imposed onerous terms requiring repayment within three months, which Fai Fong would have known was unrealistic given Golden Plus's financial circumstances. Her failure to advise the Board of these concerns represents a breach of her duty of care and competence. [459] Third, Fai Fong actively participated in various schemes that harmed Golden Plus's interests, including the fraudulent allotment of shares, attempts to appoint a receiver, and efforts to wind up the company. Her involvement extended beyond merely following directors' instructions; she exercised independent judgment in ways that prioritised the interests of certain individuals over the company's welfare. This conduct violated her duty of loyalty to Golden Plus. [460] Fai Fong's argument that she merely followed directors' instructions cannot absolve her of her fiduciary responsibilities. As a senior officer with significant financial expertise, she had an obligation to exercise independent judgment regarding matters within her purview, particularly when following instructions would harm the company. The principle that employees in positions of trust must exercise independent judgment S/N Yvwtb2AFpk50KUgpFho0w rather than blindly comply with improper directives is well established in law. [461] Based on the totality of the evidence, I find that Fai Fong owed fiduciary duties to Golden Plus by virtue of her position as General Manager of Finance, and that she breached these duties through her actions and omissions that prioritised the interests of TSS and his associates over the welfare of Golden Plus. The Plaintiffs' claim against Fai Fong for breach of fiduciary duty is accordingly allowed. Breach of Employment Contract by Fai Fong [462] The Plaintiffs contend that Fai Fong breached her employment contract with Golden Plus through her participation in various acts that violate specific clauses in her contract requiring honesty, integrity, and compliance with company policies. The Plaintiffs highlight Clauses 21 and 22 of Fai Fong's employment contract, which explicitly state that the “Company stresses great importance on personal qualities of honesty and integrity in its staff” and that any staff member “found on the basis of material evidence, to be dishonest or who is involved in any fraud, corrupt practice or misdemeanors detrimental or resulting in some loss to the Company and/or to the Group shall be liable to instant dismissal.” The Plaintiffs further argue that Fai Fong was bound by Golden Plus’s Human Resource Personnel Policy Manual which S/N Yvwtb2AFpk50KUgpFho0w obligated her to avoid misuse of position, confidential information, and conflicts of interest. The Plaintiffs maintain that Fai Fong's involvement in various acts - including providing confidential information to former directors, assisting in the fraudulent allotment of shares, supporting attempts to wind up Golden Plus, and facilitating the conversion of titles - constitutes clear breaches of these contractual obligations. [463] Fai Fong denies breaching her employment contract, contending that she was merely following the instructions of Golden Plus’s directors, particularly Andrew and TSH. She argues that she was not involved in decision-making or management control within Golden Plus, but rather that her role was confined to internal operations and financial functions. Fai Fong further submits that her actions were carried out in good faith as part of her duties, that no loss resulted from her actions, and that the Plaintiffs have failed to specifically identify which terms of her employment contract were allegedly breached. In essence, she maintains that all her actions fell within the scope of her duties as directed by those she believed were authorised to instruct her. [464] Having carefully considered the evidence and submissions, I find that Fai Fong's employment contract with Golden Plus contained explicit obligations regarding integrity and compliance with company policies. Clauses 21 and 22 of her employment contract dated 1.6.1997 S/N Yvwtb2AFpk50KUgpFho0w unequivocally required honesty and integrity from Fai Fong, and prohibited engagement in any “fraud, corrupt practice or misdemeanors detrimental or resulting in some loss to the Company and/or to the Group.” Additionally, Fai Fong was bound by Golden Plus’s Human Resource Personnel Policy Manual, which obligated her to avoid misuse of position, confidential information, and conflicts of interest. [465] The evidence clearly establishes that Fai Fong breached these contractual obligations through her conduct. Particularly egregious is her continued collaboration with Andrew and TSH after they had been removed as directors of Golden Plus on 6.3.2020. Despite being aware that these individuals were no longer authorised to act on behalf of Golden Plus, Fai Fong continued to provide confidential company information and assistance to them. This includes her preparation of shareholder spread calculations for the fraudulent allotment of shares exercise, her identification of potential creditors for winding-up petitions and her facilitation of the release of 58 land titles to Andrew just two weeks before the High Court was to deliver its decision on the Adjourned EGM Action. [466] Fai Fong's defence that she was merely following directors' instructions cannot absolve her of her contractual obligations. As General Manager of Finance with over two decades of experience at Golden Plus, she S/N Yvwtb2AFpk50KUgpFho0w was well aware of proper corporate governance requirements and the limits of directorial authority. Her continued provision of assistance to individuals she knew had been removed as directors constitutes a clear violation of her contractual duty to act with honesty and integrity in the company's best interests. The timing of her actions, consistently coinciding with critical moments in the struggle for control of Golden Plus, reveals a deliberate strategy rather than routine compliance with instructions. [467] Fai Fong's involvement in the attempted conversion of 23 land titles is particularly telling. Her letter of 14.8.2020 sought the release of these titles despite her knowledge that the Golden Plus loan had not been discharged. When questioned about the basis for releasing titles that were security for an outstanding loan, her response that “CIDL asked for it” demonstrates a conscious prioritisation of CIDL's interests over those of Golden Plus, in clear breach of her contractual duties. [468] Similarly, Fai Fong's involvement in the Sri Serdang Loan rewriting and her failure to alert directors that the arrangement required CIDL's approval further evidences her breach of contract. As General Manager of Finance, she had a contractual duty to protect the financial interests of Golden Plus, not to facilitate arrangements that placed the company in a position of financial jeopardy. S/N Yvwtb2AFpk50KUgpFho0w [469] I reject Fai Fong's contention that no loss resulted from her actions. The company incurred substantial costs in legal proceedings to recover control over assets, replace title documents, and challenge the various schemes she helped facilitate. Moreover, the breach of an employment contract does not necessarily require proof of actual financial loss; the breach itself is actionable. [470] For these reasons, I find that Fai Fong breached her employment contract with Golden Plus through actions that violated express contractual clauses requiring honesty, integrity, and compliance with company policies. The Plaintiffs' claim against Fai Fong for breach of employment contract is accordingly allowed. Fai Fong's Active Participation in Efforts to Seize Control of Golden Plus [471] The Plaintiffs contend that Fai Fong actively participated in efforts to seize control of Golden Plus beyond her role as General Manager of Finance. They point to specific incidents as evidence of her complicity in the fraud against the company, including: her email on 4.8.2020 stating that Golden Plus “MUST appeal to the Federal Court!!” regarding OS 354 despite legal advice about limited merit; her support for spurious allegations of misappropriation by Jason Teo without substantiation; her resistance to the reconstituted board's access to Golden Plus offices; and her deletion of important documents. S/N Yvwtb2AFpk50KUgpFho0w The Plaintiffs argue that these actions demonstrate her active participation in the conspiracy to preserve and perpetuate the fraud committed against Golden Plus for the benefit of TSS’s estate and his beneficiaries. [472] Fai Fong denies these allegations, characterising them as mere “Miscellaneous Allegations” that do not constitute evidence of her participation in any conspiracy. She maintains that her email simply expressed an opinion on the litigation and did not direct the course of the company's legal strategy. She argues that her role was confined to internal operations and financial functions of Golden Plus, that she was not involved in making management decisions, and that she merely followed directors' instructions. Fai Fong submits that these isolated incidents do not establish her participation in any fraudulent scheme against Golden Plus. [473] Having carefully considered the evidence, I find that Fai Fong's actions in relation to the control of Golden Plus went far beyond the proper scope of her role as General Manager of Finance and demonstrate her active participation in the conspiracy to defraud the company. The email of 4.8.2020 is particularly revealing. When informed that Golden Plus’s previous solicitors had advised “there is no merit in filing a leave application and further appeal to the Federal Court,” Fai Fong emphatically responded “Yes. MUST appeal to Federal Court!!” This response shows Fai Fong was not merely S/N Yvwtb2AFpk50KUgpFho0w offering a casual opinion but actively advocating for a course of action that would benefit Andrew and TSH's attempts to maintain control of Golden Plus, despite professional legal advice to the contrary. [474] As General Manager of Finance, Fai Fong had no legitimate business directing the course of the company's litigation. Her position required her to safeguard the company's financial interests, not to advocate for potentially meritless legal proceedings that would incur unnecessary costs. This is particularly troubling given that OS 354 contained allegations of misappropriation against Jason Teo, yet Fai Fong admitted under cross-examination that she had not personally verified these allegations through her own analysis of the company's accounts. When questioned directly about whether she had examined the accounts to verify claims of misappropriation, Fai Fong's response was telling: “But Mr Tan said there are. There were.” This demonstrates an abdication of her professional responsibility to independently verify financial matters affecting Golden Plus, instead relying on unsubstantiated claims by TSH. [475] The timing of Fai Fong's advocacy for continued litigation is significant. It occurred during a critical period when control of Golden Plus was being contested following the shareholders' decision to remove Andrew and TSH from the board on 6.3.2020. Her support for continued litigation against Jason Teo aligned perfectly with Andrew and S/N Yvwtb2AFpk50KUgpFho0w TSH's interests in maintaining control of the company. This alignment of interests and timing strongly suggests coordination rather than coincidence. [476] Furthermore, Fai Fong's obstruction of the reconstituted board's access to Golden Plus offices and deletion of important documents, as evidenced in the materials, demonstrates a pattern of behavior inconsistent with the duties of a senior financial officer. Such actions cannot be justified as merely following directors' instructions, particularly as the directors in question had been lawfully removed by shareholder vote. [477] Fai Fong's characterisation of these matters as “Miscellaneous Allegations” attempts to isolate them from the broader pattern of her conduct. However, when viewed in the context of her other actions - including her involvement in the fraudulent allotment of shares, her assistance in the attempted conversion of title deeds, and her participation in attempts to wind up Golden Plus - a clear pattern emerges of consistent support for actions that benefited Andrew, TSH, and ultimately the interests of TSS’s estate at the expense of Golden Plus. [478] The evidence establishes that Fai Fong was not a passive participant but an active collaborator in the efforts to seize and maintain control of Golden Plus for the benefit of TSS’s heirs and against the interests of the company she was employed to serve. Her actions S/N Yvwtb2AFpk50KUgpFho0w demonstrate a level of commitment to the conspiracy that transcended mere employment obligations. I therefore find that the Plaintiffs' claim against Fai Fong in relation to her participation in efforts to seize control of Golden Plus is well-founded and must be allowed. D3 (Personal Representatives of TSS, Deceased (Malaysian Will) (3rd Defendant) (with Fai Fong acting in the capacity of the representative) [479] From the facts of the case, defences relied on by D3 and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether the estate of TSS is liable to account for and restore funds that TSS fraudulently misappropriated from the Gplus Group through his undisclosed beneficial ownership of CIDL and Manfield. b) Whether the personal representative of TSS's estate should be personally liable for litigation costs when sued in her representative capacity without any allegation of personal wrongdoing, and how such costs should be allocated between the parties and the estate. S/N Yvwtb2AFpk50KUgpFho0w [480] Below is my analysis based on the issues above. Liability of the Estate of TSS for Fraudulent Misappropriation of Gplus Group Funds [481] The Plaintiffs contend that the late TSS engaged in a fraudulent scheme to siphon monies out of the Gplus Group through entities he beneficially owned but failed to disclose, namely CIDL and Manfield. The Plaintiffs assert that TSS breached his fiduciary duties to the Gplus Group by failing to disclose his beneficial ownership of these entities when causing YIL to enter into the Management Agreement with CIDL on 25.7.2007 and the subsequent Addendum on 20.12.2012, and when causing Golden Plus to enter into lease agreements with Manfield. The Plaintiffs argue that these agreements were vehicles through which TSS diverted substantial funds - amounting to approximately RMB114,102,428 to CIDL and additional sums to Manfield - despite the entities failing to perform their contractual obligations. The Plaintiffs submit that TSS’s estate, represented by the 3rd Defendant, should be liable to account for and restore all misappropriated funds to the Gplus Group. [482] No submissions were offered by Fai Fong in her capacity of the 3rd Defendant, as personal representative of TSS’s Malaysian estate, on the allegations of fraud, conspiracy to defraud, breach of fiduciary duties, breach of trust, and breach of contract agains TSS except that there is no S/N Yvwtb2AFpk50KUgpFho0w allegation of wrongdoing against Fai Fong personally in her capacity as the personal representative. [483] Upon careful examination of the evidence, I find that TSS was indeed the beneficial owner of CIDL and Manfield, which he used as vehicles to misappropriate funds from the Gplus Group. Multiple independent sources of evidence establish TSS’s beneficial ownership of CIDL from its incorporation. TSS’s 2014 Hong Kong Will and Codicil, executed on 10.4.2014 and 11.4.2014 respectively, explicitly listed CIDL and Manfield as assets under his control. While these companies were removed from the main will, the Codicil specifically bequeathed receivables from CIDL and Manfield to various beneficiaries, clearly indicating that TSS considered these companies his property as early as 2014, several years before his death. [484] This is further corroborated by the minutes of Golden Plus's 164th Board of Directors Meeting held on 14.5.2013, which record a briefing by the company's then legal counsel, Krishna Kumar, stating that “CIDL was set up by KMC on instructions from Teh Soon Seng (“TSS”) who structured the deal” for the Management Agreement.” This contemporary record directly contradicts any suggestion that TSS only acquired an interest in CIDL later. Additionally, Huang's Statutory Declaration explicitly states: “CIDL was at all times from its incorporation owned by TSS and I acted as director S/N Yvwtb2AFpk50KUgpFho0w and shareholder of CIDL upon TSS’s instructions during his lifetime.” Fai Fong, who served as Golden Plus's General Manager of Finance since 1997, testified that she knew TSS owned CIDL as early as April 2014 when she assisted with the preparation of his wills. [485] The timing of CIDL's incorporation (8.5.2007) just weeks before the execution of the Management Agreement with YIL (25.7.2007), along with its minimal paid-up capital of HKD10, strongly suggests CIDL was created specifically for the purpose of entering into this agreement. The same pattern is evident with Manfield, which was incorporated on 30.4.2007, just over two weeks before the execution of the Agreement for Lease on 17.5.2007, with a similarly minimal paid-up capital of RM219. [486] As Corporate Representative of Golden Plus’s investments in China from 2002 to 2018 and Legal Representative of YSL and Shanghai Roxy, TSS owed fiduciary duties to these companies. These duties included protecting and preserving the companies' interests and assets, not placing himself in situations where his personal interest conflicted with the interests of the companies, and disclosing any personal interest in transactions involving the companies. Section 221 of the Companies Act 2016 (and its predecessor provision) explicitly requires directors to disclose any interest in contracts with the company. TSS’s failure to disclose his S/N Yvwtb2AFpk50KUgpFho0w beneficial ownership of CIDL and Manfield constituted a clear breach of these fiduciary duties. [487] The evidence overwhelmingly demonstrates that neither CIDL nor Manfield performed their contractual obligations. Michael Lee, a director of YSL alongside TSS, testified that he “was hoping they [CIDL] will come... but I never see them coming.” Zhao Li Sheng, who worked on the RGP, confirmed that “CIDL did not do any application, means coordination process for our company” and that he personally obtained all necessary approvals through YSL's business development department. There is a complete absence of documentary evidence demonstrating CIDL's performance, despite extensive discovery. The Special Audit Report confirmed that CIDL had no operational records. Similarly, there is no evidence that Manfield performed its obligations under the Manfield Lease Agreements. [488] In Kuwait Oil Tanker Co SAK v Al-Bader, the Court of Appeal noted that “it is not necessary to show that there is anything in the nature of an express agreement, whether formal or informal. It is sufficient if two or more persons combine with a common intention.” The evidence establishes that TSS, in concert with others, engaged in a conspiracy to defraud the Gplus Group by diverting substantial funds to entities he secretly controlled. S/N Yvwtb2AFpk50KUgpFho0w [489] Section 8(1) of the Civil Law Act 1956 permits that, upon a person's death, any cause of action existing against them continues to be enforceable against their estate, except for claims related to defamation, seduction, or inducing a spouse to separate. Equity mandates tracing these assets into the estate under the principles of Foskett v McKeown [2001] 1 AC 102, where the House of Lords affirmed that beneficiaries are entitled to proprietary claims over assets derived from fraud. While I accept that there is no allegation of personal wrongdoing against Fai Fong in her capacity as the Personal Representative of TSS’s Malaysian estate, this does not absolve the estate of liability for TSS’s fraudulent conduct. [490] I find that TSS’s estate is liable to account for and restore all misappropriated funds to the Plaintiffs, with tracing orders granted over assets acquired through the fraudulent schemes. The estate, having been enriched by TSS’s unlawful diversion of funds, cannot escape liability for his wrongdoing. The CIDL Management Agreement and Manfield Lease Agreements are declared void ab initio for fraud, and D3 (Fai Fong), as Personal Representative of TSS’s Malaysian estate, is ordered to trace and apply the assets of the estate to discharge the indebtedness to the Plaintiffs. S/N Yvwtb2AFpk50KUgpFho0w Costs Against the Estate [491] D3 (Fai Fong) in her capacity as Personal Representative of TSS’s Malaysian Estate, submits that there is no allegation of wrongdoing against her personally in her representative capacity. She contends that she has been made a party purely because part of the relief sought by the Plaintiffs relates to the Estate of TSS. D3 argues that since there is no allegation of personal wrongdoing against her, no order for costs should be made against her personally, and she should be allowed to claim the costs she has expended in this action in her capacity as the Personal Representative of TSS from the Plaintiffs and/or the Estate of TSS. [492] D3’s contention that there is no allegation of wrongdoing against Fai Fong personally is accepted. The Plaintiffs' claim is against the estate of TSS, not against Fai Fong in her personal capacity. As an executor, she is entitled to indemnity from the estate for costs properly incurred in defending proceedings brought against the estate. The effect of Order 59 Rule 15 of the Rules of Court 2012 is that when a judgment is rendered against a deceased tortfeasor with a personal representative, the costs are to be paid out of the fund held by that representative and determined on a common fund basis. S/N Yvwtb2AFpk50KUgpFho0w [493] The Plaintiffs' costs were necessitated by TSS’s fraudulent diversion of funds, directly linking the estate's liability to the litigation expenses. The estate, as the juridical continuation of TSS, must bear the fiscal consequences of his wrongdoing. [494] In conclusion, I find that TSS’s estate is liable to account for and restore all misappropriated funds to the Plaintiffs. The injunction restraining the Personal Representatives from relying on or acting upon monies allegedly owed by the Plaintiffs is granted. The declaration that the assets of TSS’s estate be traced and applied to discharge indebtedness to the Plaintiffs, and that assets purchased with sums due to the Plaintiffs belong to the Plaintiffs, are also granted. While Fai Fong should not be personally liable for costs, the Plaintiffs' costs are recoverable exclusively from estate funds. D15 (Personal Representatives of TSS, Deceased (China Will) (15th Defendant) (with Michael Lee acting in the capacity of representative) [495] From the facts of the case, defences relied on by D15 and the submissions of parties, the court frames the following main issues for deliberation which this court considers pivotal to the resolution of this case: a) Whether the claims against the various defendants were properly joined in a single S/N Yvwtb2AFpk50KUgpFho0w action as part of an alleged conspiracy to defraud the Gplus Group, notwithstanding that the claims involved different transactions entered into with different parties at different times and across different jurisdictions. b) Whether Michael Lee's testimony regarding CIDL's non-involvement in the RGP should be accorded substantial weight and credibility, notwithstanding his role as representative of D15 and his claimed lack of knowledge of TSS's alleged wrongdoings. c) Whether the Plaintiffs had adduced sufficient evidence to establish on a balance of probabilities that TSS committed fraud, breach of trust, breach of fiduciary duties, and breach of contract in relation to the CIDL Management Agreement and engineered payments to Heng Fat nominees. d) Whether exemplary damages are available in cases involving fraud and breach of fiduciary duties. e) Whether D15 can raise a limitation defence for the first time in closing submissions without having pleaded it in the Defence. S/N Yvwtb2AFpk50KUgpFho0w f) Whether exemplary damages are available in cases involving fraud and breach of fiduciary duties, and whether D15 was procedurally barred from raising a limitation defence for the first time in closing submissions without having pleaded it in the Defence. [496] Below is my analysis based on the issues above. Joinder of Claims and Defendants in a Conspiracy Action [497] D15 (Michael Lee) submits that the claims sought against the several Defendants are not inextricably tied or connected. In Paragraph 10 of its submissions, D15 argues that the claims represent separate causes of action brought by separate entities over different transactions entered into with different parties at different times. D15 contends that these claims should have been brought by the respective separate entities against the individuals separately in their respective jurisdictions, rather than being consolidated into a single suit. D15 further submits that D15 as the representative of TSS’s estate under the China Will has no knowledge of any wrongdoings by TSS and is not in a position to respond to the allegations against TSS. [498] The Plaintiffs contend that their claims against the various Defendants, including D15, are properly joined in a single action as they form part of the same conspiracy to S/N Yvwtb2AFpk50KUgpFho0w defraud the Gplus Group. They assert that the various acts committed by different Defendants at different intervals in time were part of a continuous series of acts leading towards one common purpose: to siphon monies out of the Gplus Group and to preserve the proceeds of the fraud in TSS’s estate. The Plaintiffs argue that the conspiracy transcends the First Period (when TSS was alive) and the Second Period (after TSS’s death), with different Defendants participating at different stages but with the same ultimate objective. They rely on the prior ruling of Justice Anand Ponnudurai dated 26.11.2021, which rejected similar arguments regarding the joinder of claims and defendants, and determined that the various acts of the Defendants forming part of the same conspiracy should be treated as one for jurisdictional purposes. [499] Having considered the submissions of both parties, I find that the Plaintiffs' position on the joinder of claims and defendants is well-founded. The law on conspiracy is clear that it is not necessary to show an express agreement between the participants, whether formal or informal. As held by the Court of Appeal in Kuwait Oil Tanker Co SAK v Al-Bader, it is sufficient that two or more persons combine to achieve a common end. The court noted that “it is not necessary for the conspirators all to join the conspiracy at the same time, but... the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly S/N Yvwtb2AFpk50KUgpFho0w to be said that they were acting in concert at the time of the acts complained of.” This principle is particularly relevant in the present case, where the Plaintiffs have pleaded that the various Defendants participated in the conspiracy at different points in time but with the common purpose of defrauding the Gplus Group. [500] The nature of conspiracy is such that its origins are often concealed, and as observed in Lakatamia, “conspirators are very unlikely to have entered into a conspiracy in an open and documented manner.” The court in that case, citing O'Connor LJ in R v Siracusa, noted that “the origins of all conspiracies are concealed and it is usually quite impossible to establish when or where the initial agreement was made... The very existence of the agreement can only be inferred from overt acts.” This underscores the importance of examining the cumulative evidential picture to determine whether the Defendants were acting in concert, rather than isolating each act and treating it as a separate cause of action. [501] In the present case, the Plaintiffs have pleaded in Paragraph 51 of the SOC that “to protect these interests and continue perpetuating the fraud on the Gplus Group by continuing to siphon out the proceeds from the RGP through CIDL, Andrew, Valarie, Maria, TSH, ST Goh, Yong Chooi Lan, Pacific Victor, CIDL, GQ Huang, GY Huang and/or Fai Fong conspired to, and purported to enable Andrew, Valarie, TSH and/or their nominees to S/N Yvwtb2AFpk50KUgpFho0w take control of Golden Plus and its subsidiaries.” This pleading clearly establishes the nexus between the acts of the various Defendants, including D15 as the representative of TSS’s estate, in the alleged conspiracy. [502] Justice Anand Ponnudurai, in his ruling dated 26.11.2021, has already considered and rejected the arguments now being raised again by D15. His Lordship held that “the main claim by the Plaintiffs herein is conspiracy, which encompasses a series of acts by various Defendants with a common object of causing harm and injury to one or more parties. One cannot separate a series of conduct by various Defendants into separate pigeon holes requiring separate actions being brought.” I find no reason to depart from this well-reasoned determination. [503] The fact that D15, as the representative of TSS’s estate under the China Will, claims to have no knowledge of TSS’s alleged wrongdoings does not negate the Plaintiffs' right to pursue their claims against the estate in this action. D15's lack of personal knowledge about TSS’s activities is immaterial to the determination of whether the claims against the various Defendants are properly joined. What matters is whether the pleaded conspiracy, if proven, establishes a sufficient nexus between the acts of the various Defendants to justify their joinder in a single action. S/N Yvwtb2AFpk50KUgpFho0w [504] In conclusion, I find that the Plaintiffs' claims against the various Defendants, including D15, are properly joined in this action. The Plaintiffs have pleaded a conspiracy that encompasses a series of acts by various Defendants with the common object of causing harm to the Gplus Group. These acts, while occurring at different times and involving different Defendants, form part of the same conspiracy and should be tried together. D15's objection to the joinder of claims and defendants is accordingly dismissed. Credibility and Weight of Michael Lee's Testimony regarding CIDL's Non-Involvement in the RGP [505] D15, through their counsel, submits that Michael Lee has conceded having no knowledge of any wrongdoings by TSS and is not in a position to respond to the allegations against TSS. In paragraph 14 of their written submissions they state: “D15 have no knowledge of any wrongdoings by TSS, deceased and am not in the position to response to the allegations against TSS deceased.” D15 further contends submissions that the claims against the various defendants are not “inextricably tied or connected” and should have been brought separately against individual defendants in their respective jurisdictions rather than consolidated into one suit. S/N Yvwtb2AFpk50KUgpFho0w [506] The Plaintiffs contend that Michael Lee, despite being the representative of D15, is a crucial witness whose testimony deserves substantial weight in this case. They highlight that Michael Lee was the first Legal Representative of YSL, who executed the agreement with the Shanghai City Housing and Land Management Board for the land in the Minhang District on which the RGP was built. Furthermore, he served as the head of the Planning and Construction Department of YSL and as Project Manager/Director for all four phases of the RGP, making him responsible for all aspects of planning and construction. Most significantly, the Plaintiffs emphasise that Michael Lee unequivocally testified that CIDL had no involvement whatsoever in the development of the RGP, a statement that directly contradicts the purported purpose of the CIDL Management Agreement dated 25.7.2007 and its Addendum dated 20.12.2012. [507] Having carefully considered the submissions of both parties, I find D15/Michael Lee's testimony to be of exceptional probative value, particularly his unequivocal statement that “CIDL had no involvement whatsoever in the development of the Royal Garden Project.” This testimony is especially significant given Michael Lee's unique position and credentials. As the first Legal Representative of YSL who executed the land acquisition agreement for the RGP with the Shanghai authorities, and as the Project Manager/Director responsible for all aspects of planning and construction across all four S/N Yvwtb2AFpk50KUgpFho0w phases of the project, Michael Lee possessed intimate and comprehensive knowledge of the project's execution and management. His testimony that CIDL had no involvement in the development directly contradicts the purported purpose of the CIDL Management Agreement, which granted CIDL “total and exclusive rights as manager to manage and control the business of YSL relating to the development of the Royal Garden Project.” [508] The weight of Michael Lee's testimony is not diminished by the fact that he, as the representative of D15, has no knowledge of TSS’s alleged wrongdoings. On the contrary, this lack of personal knowledge about TSS’s motivations or actions makes his factual testimony about CIDL's non-involvement in the project all the more credible, as it is based solely on his direct professional experience rather than any effort to defend or implicate TSS. Michael Lee's testimony therefore stands as independent corroboration of the Plaintiffs' contention that the CIDL Management Agreement was a sham transaction designed to siphon funds from the RGP. [509] It bears noting that the issue of whether the claims against various defendants are “inextricably tied or connected” has already been determined by Justice Anand Ponnudurai on 26.11.2021, who held that: “The main claim by the Plaintiffs herein is conspiracy, which encompasses a series of acts by various Defendants with a common object of causing harm and injury to one or S/N Yvwtb2AFpk50KUgpFho0w more parties. One cannot separate a series of conduct by various Defendants into separate pigeon holes requiring separate actions being brought.” This determination remains valid and binding. [510] In conclusion, I find Michael Lee's testimony that CIDL had no involvement whatsoever in the development of the RGP to be highly credible and deserving of substantial weight. This finding supports the Plaintiffs' contention that the CIDL Management Agreement was a fraudulent scheme designed to siphon funds from the RGP, rather than a legitimate business arrangement. D15's argument that claims against various defendants should have been brought separately has already been rejected by this court, and their representative's lack of knowledge about TSS’s alleged wrongdoings does not detract from the factual value of his testimony regarding CIDL's non-involvement in the project. Sufficiency of Evidence Establishing TSS’s Fraud and Breach of Fiduciary Duties [511] The Plaintiffs contend that they have established through substantial documentary and testimonial evidence that TSS, during his lifetime, committed fraud, breach of trust, breach of fiduciary duties, and breach of contract in relation to the CIDL Management Agreement dated 25.7.2007 and its Addendum dated 20.12.2012, as well as engineered payments totaling RMB52 Million to Heng S/N Yvwtb2AFpk50KUgpFho0w Fat nominees. The Plaintiffs assert that their Closing Submissions comprehensively address the evidence presented at trial, which demonstrates that TSS beneficially owned CIDL from its inception, concealed this interest from the board while structuring the Management Agreement, and facilitated payments to CIDL and Heng Fat nominees for services that were never rendered. The Plaintiffs rely on witness testimony, contemporaneous documents, and board minutes which collectively establish that CIDL had no involvement in the development of the RGP despite receiving substantial payments under the Management Agreement. [512] D15, representing TSS’s estate under his China Will, submits that based on the oral and documentary evidence produced before the court, the Plaintiffs have failed to prove that TSS committed fraud, breach of trust, breach of fiduciary duties, or breach of contract regarding the CIDL Management Agreement, or that he engineered payments to Heng Fat nominees. D15 further asserts that the Plaintiffs' claims are “all base on rhetoric” and that they have not shown evidence that TSS was the beneficial owner of CIDL at the time the Management Agreement was executed, or that TSS received any portion of the RMB166,102,428.00 claimed as special damages. D15 also contends that all decisions on agreements and payments were deliberated, minuted, and approved by Golden Plus directors, not by TSS alone. S/N Yvwtb2AFpk50KUgpFho0w [513] Having carefully considered the parties' submissions and the evidence adduced at trial, I am satisfied that the Plaintiffs have established their case against TSS on a balance of probabilities. The evidence overwhelmingly demonstrates that TSS owned and controlled CIDL from its inception and used it as a vehicle to siphon funds from the Gplus Group. The contemporaneous documentary evidence, particularly the minutes of the 164th Board of Directors Meeting of Golden Plus dated 14.5.2013, clearly records that “CIDL was set up by KMC on instructions from Teh Soon Seng (“TSS”) who structured the deal and briefed the Company.” This was further corroborated by TSH's admission under cross-examination that he was aware CIDL was set up upon TSS’s instructions. TSS’s 2014 Hong Kong Will initially listed CIDL as an asset, and though this was later revised, a Codicil was executed to bequeath CIDL's receivables to his beneficiaries. These documents establish that TSS had beneficial ownership of CIDL predating 2014. [514] Most compelling is Huang's Statutory Declaration, where he affirmed: “I was not involved in the incorporation of CIDL nor did I pay for the shares in CIDL. I was approached by TSS to hold the shares in CIDL as his nominee and agreed to be appointed as the sole director of CIDL. CIDL was at all times from its incorporation owned by TSS and I acted as director and shareholder of CIDL upon TSS’s instructions during his lifetime.” S/N Yvwtb2AFpk50KUgpFho0w Although Huang later attempted to retract this declaration during cross-examination, his original declaration, made before a notary public and the Malaysian Consulate in Shanghai, carries significant weight. [515] The testimony of DW5 Michael Lee is particularly significant in establishing that CIDL did not perform the services for which it was paid. Michael Lee, who was the first Legal Representative of YSL and the Project Manager for all four phases of the RGP, unequivocally testified that “CIDL had no involvement whatsoever in the development of the Royal Garden Project.” Michael Lee's testimony deserves substantial weight given his intimate knowledge of the project and his responsibility for all aspects of its planning and construction. [516] D15's contention that all agreements and payments were approved by Golden Plus directors does not negate TSS's liability. As established in Kuwait Oil Tanker Company SAK, directors owe “duties of good faith and honesty” to their companies which “would be broken if they engaged in dishonest schemes to embezzle or misapply the companies' funds.” The court confirmed that breaches of fiduciary duty cannot be legitimised through claims of authorisation. TSS, as YSL's Legal Representative and a director of Golden Plus subsidiaries, had a duty to disclose his interest in CIDL, which he failed to do. His non-disclosure rendered any S/N Yvwtb2AFpk50KUgpFho0w board approvals ineffective as they were tainted by his concealment of material information. [517] The evidence also establishes that TSS’s estate retains assets traceable to the fraud. TSS’s 2017 Hong Kong Will explicitly bequeathed CIDL's receivables to Maria, Andrew, and others, demonstrating that his estate continues to benefit from the proceeds of the fraud. [518] In light of the above, I reject D15's submission that the Plaintiffs have failed to prove their case against TSS. The documentary evidence, witness testimony, and admissions made during cross-examination collectively establish that TSS committed fraud and breach of fiduciary duties in relation to the CIDL Management Agreement and engineered payments to Heng Fat nominees for which no services were rendered. Accordingly, the Plaintiffs' claim against D15 as representative of TSS’s estate under the China Will is allowed. Availability of Exemplary Damages in Fraud and Breach of Fiduciary Duty Cases [519] The Plaintiffs contend that exemplary damages are available in cases involving fraud and breach of fiduciary duties. They rely on established legal principles concerning joint and several liability of tortfeasors, and specifically highlight the egregious conduct of the S/N Yvwtb2AFpk50KUgpFho0w Defendants, who allegedly “would stop at nothing to seek to protect their ill-gotten gain and to continue perpetuating the fraud.” The Plaintiffs cite the Court of Appeal decision in Sin Heap Lee-Marubeni Sdn Bhd v Yip Sou Shan [2005] 1 MLJ 515, where exemplary damages of 25% of compensatory damages were upheld, as authority supporting their claim for similar exemplary damages against the Defendants jointly and severally. [520] D15 submits, without citing any legal authority, that “Exemplary Damages are not available to Fraud or breach of Fiduciary cases.” D15 further contends that the burden of proof regarding whether the Estate of TSS is liable to pay the special damages of RMB166,102,428.0 lies on the Plaintiffs, asserting that “TSS Deceased did not received any money.” [521] Having considered the submissions of both parties, I find that D15's contention that exemplary damages are not available in cases of fraud or breach of fiduciary duty is without merit. Exemplary damages, also known as punitive damages, are indeed available in cases where the defendant's conduct has been particularly egregious, oppressive, or malicious. This is well-established in Malaysian jurisprudence and applies to cases involving fraud and breach of fiduciary duty. S/N Yvwtb2AFpk50KUgpFho0w [522] The Court of Appeal in Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan upheld an award of exemplary damages in a case involving trespass and nuisance. The appellant had encroached onto the respondent's land during excavation works, creating a steep slope approximately 100 feet high. The court recognised that exemplary damages were appropriate because the appellant acted with “cynical disregard” for the respondent's rights and their conduct was “calculated to make profit.” Following the formula established in Templeton v Low Yat Holdings [1989] 2 MLJ 202, the Court of Appeal affirmed the award of exemplary damages at 25% of compensatory damages (RM900,000), demonstrating judicial acceptance of substantial punitive awards in appropriate cases. [523] The evidence in this case, if accepted, reveals conduct that would justify exemplary damages. The Plaintiffs have presented evidence that the Defendants, including TSS during his lifetime, orchestrated elaborate schemes to siphon funds from the Gplus Group through sham agreements and transactions. The subsequent conduct of other Defendants in attempting to seize control of Golden Plus, creating artificial debts, and even contravening securities laws through fraudulent share allotments suggests a pattern of calculated misconduct that extends beyond ordinary civil wrongdoing. S/N Yvwtb2AFpk50KUgpFho0w [524] Importantly, the absence of proof that TSS himself directly received the misappropriated funds does not preclude liability. As established in Kuwait Oil Tanker Company SAK, directors owe “duties of good faith and honesty” that “would be broken if they engaged in dishonest schemes to embezzle or misapply the companies' funds.” The court held defendants liable even when they claimed to be acting under authorisation, finding them constructive trustees of diverted funds. If TSS structured transactions that diverted corporate assets, whether or not he was the direct recipient of those assets, he remains liable for the breach of fiduciary duties and the resulting loss to the corporation. [525] D15 has provided no legal authority to support the proposition that exemplary damages are categorically unavailable in fraud or breach of fiduciary duty cases. This unsupported assertion contradicts established legal principles and case law. Accordingly, I find that exemplary damages are available in this case, subject to proof of the underlying fraud and breach of fiduciary duty claims. The quantum of such damages would appropriately be determined with reference to the compensatory damages awarded, following the guidance provided in Sin Heap Lee-Marubeni Sdn Bhd v Yip Sou Shan. S/N Yvwtb2AFpk50KUgpFho0w Procedural Bar Against Raising Limitation Defence in Closing Submissions [526] The Plaintiffs contend that D15's attempt to raise a limitation defence in its Closing Submissionsis procedurally improper and should be rejected by this court. The Plaintiffs specifically point out that D15 has not pleaded in its Defence that the Plaintiffs' action against the estate of TSS is time-barred. The Plaintiffs submit that it is not open to D15 to raise this issue at the stage of Closing Submissions, as this would contravene established principles of pleading. [527] D15, in paragraph 17 of its Submissions, implicitly raises a limitation defence by arguing that the Plaintiffs' claim should be dismissed with costs unless, among other requirements, “the case is not time barred.” This limitation argument is further developed in D15's Executive Summary, where it states: “This Legal action was taken against TSS, Deceased after he died and long after all Agreements were executed and Payments were made to 8 other companies by the Golden Plus Directors. The Plaintiffs' claim is time barred.” D15's position is that the alleged fraudulent acts occurred between 2000-2012, while the suit was only filed in 2020, after TSS had passed away on 23.3.2018, and thus the action should be barred by limitation. S/N Yvwtb2AFpk50KUgpFho0w [528] Having carefully considered the submissions of both parties, I find the Plaintiffs' position to be well-founded. It is a fundamental principle of civil procedure that all defences upon which a defendant intends to rely must be specifically pleaded in the Defence. Order 18 Rule 8(1) of the Rules of Court 2012 mandates that a defendant must plead all defences on which they intend to rely, and specifically raise any matters that might otherwise take the plaintiff by surprise. The defence of limitation is undoubtedly such a matter that requires specific pleading at the outset of proceedings. Order 18 Rule 8(1) provides: “Matters which shall be specifically pleaded (O 8 r 8)
8
(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality—
a
which he alleges makes any claim or defence of the opposite party not maintainable; or
b
which, if not specifically pleaded, might take the opposite party by surprise; or
c
which raises issues of fact not arising out of the preceding pleading.” [529] This requirement serves the important function of giving adequate notice to the opposing party, allowing them the opportunity to adduce evidence to counter such a defence. To permit D15 to raise this defence for the first time in Closing Submissions would unfairly prejudice the S/N Yvwtb2AFpk50KUgpFho0w Plaintiffs, who would have structured their case presentation differently had they been aware that limitation was in issue. [530] Upon examination of D15's Defence, I find no clear pleading that the Plaintiffs' action is time-barred. Although D15 does allude to the timing of events in its submissions, mentioning that the alleged acts occurred between 1997 and 2018 and that specific payments were made in 2009, these statements fall far short of a proper pleading of limitation as required by Order 18 Rule 8(1) of the Rules of Court 2012. [531] Even if I were to consider the limitation defence on its merits (which I am not required to do given its procedural inadmissibility), I note that Section 29 of the Limitation Act 1953 provides that where an action is based upon the fraud of the defendant, or the right of action is concealed by the fraud of such person, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. The nature of the Plaintiffs' claims - involving allegations of concealed fraud and conspiracy - would likely invoke this provision, potentially rendering the limitation defence inapplicable even if properly pleaded. [532] In conclusion, I find that D15's attempt to raise a limitation defence in its Closing Submissions is procedurally impermissible, as it was not properly pleaded in the S/N Yvwtb2AFpk50KUgpFho0w Defence as required by Order 18 Rule 8(1) of the Rules of Court 2012. This finding is consistent with established principles of civil procedure designed to ensure fairness and prevent surprise to litigants. Accordingly, I reject D15's limitation defence and rule that the Plaintiffs' claim is not barred on grounds of limitation. FINDINGS [533] Having carefully considered all the evidence and submissions presented during this 33-day trial, I find that the Plaintiffs have proven their claims against the Defendants on a balance of probabilities for the following the causes of action: a) Fraud against TSS, ST Goh, TSH, CIDL, Huang, Pacific Victor, Maria and Yong Chooi Lan relating to the defendants siphoning monies out of the Gplus Group through management contracts with Golden Plus's subsidiaries in Hong Kong and creating artificial debt to benefit themselves. b) Conspiracy to defraud against TSS, ST Goh, TSH, CIDL, Huang, Pacific Victor, Maria, Yong Chooi Lan and Fai Fong relating to these defendants agreeing to artificially create debt by Golden Plus, Sri Serdang, GP BVI, and YIL to S/N Yvwtb2AFpk50KUgpFho0w alleged creditors - CIDL, Pacific Victor, Maria, Yong Chooi Lan and Andrew. c) Conspiracy to injure the Gplus Group for the First Period against TSS, ST Goh, TSH, CIDL, GQ Huang, GY Huang, Pacific Victor, Maria and Yong Chooi Lan for siphoning monies out of the Gplus Group to themselves and/or their nominees through management contracts with Golden Plus's subsidiaries in Hong Kong, particularly through the CIDL Management Agreement which granted CIDL control over the RGP and diverted its profits, the artificial creation of debt by Golden Plus and some of its subsidiaries in their favour or those of their nominees, and the Manfield Lease Agreements which were used as vehicles to divert funds from Shanghai Roxy and Shanghai QSR. d) Conspiracy to injure the Gplus Group for the Second Period against Andrew, Valarie, Maria, TSH, ST Goh, Yong Chooi Lan, CIDL, Huang, and Fai Fong for continuing to perpetuate the fraud after TSS's demise by protecting the interests of TSS's estate in the Management Agreement and Manfield Lease Agreements, wrongfully entrenching themselves and/or their nominees in the Gplus Group through fraudulent share allotments to Eng, S/N Yvwtb2AFpk50KUgpFho0w further creating and/or acknowledging alleged debt in Andrew's and/or CIDL's favour, converting the Gplus Group's assets in Malaysia, Hong Kong and Shanghai, and planning to wind up Golden Plus and/or its subsidiaries. e) Breach of fiduciary duties against TSS, ST Goh and TSH as directors of Golden Plus and its subsidiaries occurring when they failed to protect the interests of Golden Plus, failed to disclose TSS's interest in agreements (particularly the CIDL Management Agreement and Manfield Lease Agreements), acted in conflict of interest, and failed to be transparent with the board of Golden Plus. f) Breach of fiduciary duties against Fai Fong, as General Manager of Finance by: acknowledging fabricated debts to CIDL; transferring 58 land titles to Andrew before crucial court decisions; conspiring to convert company assets; participating in discussions about receivership and winding up; helping Andrew take control of overseas subsidiaries while encumbering Sri Serdang's lands; and failing to disclose improper transactions which violated her obligations to act in the company's best interests, avoid conflicts, maintain loyalty, and provide transparency. S/N Yvwtb2AFpk50KUgpFho0w g) Breach of trust against TSS, ST Goh and TSH for mishandling their positions of trust within the Golden Plus group, particularly in relation to the management of investments in Hong Kong and Shanghai. h) Breach of contract against TSS, ST Goh, TSH and Fai Fong related to their employment and/or directorship duties. i) Conversion against Andrew and Fai Fong for taking possession of and/or converting the 23 issue document of titles of lands in Kajang belonging to Sri Serdang and 58 issue document of titles belonging to Sri Serdang, Venice Heights, and Hanpopular. [534] I arrived at the conclusion that the Plaintiffs have proven all their causes of action against the defendants based on the following factual findings. [535] In respect of the CIDL Management Agreement: a) TSS was the beneficial owner of 97.5% of CIDL. It was incorporated on 8.5.2007, with paid-up capital of HKD10, set up by Messrs. Krish Maniam & Co. on TSS’s instructions. S/N Yvwtb2AFpk50KUgpFho0w b) Huang held 19,499,995 shares in CIDL on trust for TSS, serving merely as TSS’s nominee with no substantive role in CIDL's purported operations. c) TSS failed to disclose his substantial beneficial interest in CIDL to the board of Golden Plus and to YIL prior to the execution of the Management Agreement on 25.7.2007 the Addendum dated 20.12.2012, in breach of the Hong Kong Companies Ordinance and YIL's articles of association. This non-disclosure renders the agreements void ab initio. d) CIDL did not perform any of its obligations under the Management Agreement. No evidence, documentary or otherwise, was presented to demonstrate CIDL's performance despite claims of involvement in obtaining permits, arranging financing, and managing the project. e) YSL paid CIDL and/or its nominees a sum of RMB69,102,428 for purported management fees, and a further sum of RMB245,000,000 as CIDL's alleged profit entitlement although CIDL was not substantively involved in the management and operations of the RGP, which was in fact managed and developed by YSL. S/N Yvwtb2AFpk50KUgpFho0w f) The Addendum to the Management Agreement dated 20.12.2012 was executed by TSS and ST Goh without incorporating amendments required by the board of Golden Plus. g) ST Goh misled the board of Golden Plus between January and March 2013 by failing to disclose that he had already signed the Addendum in December 2012, and by representing that all he had received was a draft addendum. h) ST Goh also misrepresented the situation to Bursa Malaysia in February 2013 by stating that the Addendum had yet to be executed when he had in fact executed it two months prior. [536] In respect of the Manfield Lease Agreements: a) TSS created a scheme involving Manfield to siphon monies out of the Dino Beach Water Park causing Golden Plus, GCE and Paradize Bazaar to enter into the Manfield Lease Agreements with Manfield. b) Manfield was beneficially owned by TSS, with Li Lin (TSS’s mistress) serving as the nominee shareholder and director which she admitted in her testimony in Suit 560. S/N Yvwtb2AFpk50KUgpFho0w c) TSS, ST Goh and/or TSH failed to disclose TSS's interest in the Manfield Lease Agreements and/or in Manfield in that Li Lin, a director of Manfield who signed the agreements, was another mistress of TSS and worked with ST Goh in the ticketing department of the Dino Beach Water Park. This non-disclosure renders the agreements void ab initio. d) Manfield did not actually participate in the development, operation and business of the Dino Beach Water Park, which was at all material times operated by Shanghai Roxy and Shanghai QSR. [537] In respect of the artificial creation of debt: a) The defendants conspired to artificially create debt by Golden Plus, Sri Serdang, GP BVI and YIL to alleged creditors including CIDL, Pacific Victor, Maria, and Yong Chooi Lan. b) The purported Facility Agreement dated 18.10.2016 and Supplemental Agreement dated 28.2.2017 between CIDL and Golden Plus for the Gplus Loan whereby CIDL allegedly advanced USD1.5 million to Golden Plus was in fact funded by monies that should have flowed to Golden Plus through its subsidiaries. S/N Yvwtb2AFpk50KUgpFho0w c) Similarly, the Facility Agreement dated 11.12.2017 between CIDL and Sri Serdang for USD1 million for the Sri Serdang Loan, of which USD450,000 was allegedly advanced, was another artificial creation of debt. d) The YCL Loan Agreement between Yong Chooi Lan and GP BVI for USD3 million was an artificial debt as she was not a person of means who could not have advanced the fund for the alleged loan. e) TSS and Maria, the sole shareholder and a director of Pacific Victor, caused YIL to enter into Tenancy Agreements with Pacific Victor for the rental of the Mayfair Flat at a monthly rent of HKD100,000 and the possession of the premises never being delivered to YIL, as they were at all material times used and occupied by Maria and Valarie as their own residence. [538] In respect of the continuation of fraud after TSS's death: a) Following TSS's death on 23.3.2018, the Defendants engaged in further actions to preserve the fraudulent schemes and to continue to deprive Golden Plus and its subsidiaries of their assets. S/N Yvwtb2AFpk50KUgpFho0w b) Andrew, Valarie, Maria, and TSH conspired to cause the issuance and allotment of 46,196,995 shares in Golden Plus to Eng by orchestrating a sham Settlement Agreement dated 25.8.2020 between Golden Plus, CIDL, and Eng, designed to dilute the majority faction's shareholding from 28.81% to 21.92% while creating a new single-block majority of 23.93%, despite Eng never actually paying CIDL the RM9,239,399 stated in the agreement. c) Andrew, TSH, Fai Fong, CIDL and Huang conspired to take possession of and/or convert 23 issue document of titles of lands in Kajang belonging to Sri Serdang. d) Fai Fong gave possession of a further 58 issue document of titles belonging to Sri Serdang, Venice Heights and Hanpopular to Andrew on 14.8.2020, who has wrongfully withheld these titles. e) Andrew, TSH and Fai Fong also caused Sri Serdang to acknowledge a purported outstanding debt of RM2,503,315.80 with CIDL as at 26.7.2020, which was not a legitimate debt. S/N Yvwtb2AFpk50KUgpFho0w f) The Defendants have since attempted to use these alleged debts as vehicles to assert control over Golden Plus and/or its subsidiaries, including commencing winding-up proceedings against GP BVI and seeking to enforce other purported debts. [539] In respect of breach of fiduciary duties, trust and contract: a) TSS, ST Goh and TSH acted in breach of their fiduciary duties, trust and/or contractual obligations to Golden Plus and its subsidiaries by: i) Failing to protect the interests of Golden Plus and YIL by entering into the CIDL Management Agreement and Manfield Lease Agreements; ii) Failing to disclose TSS's interests in CIDL and MIL; iii) Acting in conflict of interest by furthering TSS's interests as the ultimate beneficial owner of CIDL and MIL; and S/N Yvwtb2AFpk50KUgpFho0w iv) Not acting in good faith and lacking transparency in their dealings with Golden Plus. b) ST Goh breached his fiduciary duties by failing to investigate TSS’s misfeasance, blindly following TSS’s instructions, not reporting matters to the board of Golden Plus and partaking in the distribution of cash proceeds from the Dino Beach Water Park. c) Fai Fong breached her duties by failing to disclose to the board of Golden Plus that TSS was the beneficial owner of CIDL and Manfield, which she discovered when assisting TSS with the preparation of his 2014 Wills. d) TSS and ST Goh executed written resolutions authorising agreements with CIDL and Manfield before those companies were actually incorporated, demonstrating their disregard for proper corporate governance: YIL's written resolution authorising the Management Agreement with CIDL was executed on 17.4.2007 before CIDL’s incorporated 3 weeks later on 8.5.2007 with a paid-up capital of HKD10 and GCE's written resolution authorising the Lease Agreement with Manfield was S/N Yvwtb2AFpk50KUgpFho0w executed on 17.4.2007 before Manfield’s incorporated on 30.4.2007; e) Following TSS's death, Andrew, TSH, ST Goh, and Fai Fong have breached their fiduciary duties and/or contractual obligations to Golden Plus and its subsidiaries through their conduct aimed at continuing and preserving the fraudulent schemes. f) There is a clear, consistent pattern of fraudulent conduct spanning more than two decades, designed to siphon funds from Golden Plus and its subsidiaries for the personal benefit of TSS and those closest to him, which continued after his death through the actions of the remaining defendants. RELIEFS [540] Having considered the totality of the evidence and having found that the Plaintiffs have established their case on the balance of probabilities, I now turn to addressing the appropriate reliefs to be granted. S/N Yvwtb2AFpk50KUgpFho0w Declarations Regarding the CIDL Management Agreement and YCL Loan Agreement [541] Having carefully considered all evidence presented during this trial, I grant the following declarations on these grounds. Declaration on Invalidity of the CIDL Management Agreement and Addendum [542] I declare that the Management Agreement dated 25.7.2007 and the Addendum dated 20.12.2012 entered into between YIL and CIDL were procured by fraud and/or breach of trust and/or breach of fiduciary duties and/or breach of contract, and are thereby null and void, not binding and unenforceable on the following grounds: a) The evidence conclusively establishes that TSS was the beneficial owner of CIDL from its inception, a fact he deliberately concealed from the board of Golden Plus and its subsidiaries when procuring the Management Agreement. b) CIDL was incorporated on 8.5.2007, a mere 2.5 months before the Management Agreement was executed, with a paid-up capital of only HKD10, demonstrating it was never intended to be a company of substance. S/N Yvwtb2AFpk50KUgpFho0w c) The CIDL Management Agreement was part of a systematic scheme designed to siphon proceeds of the RGP away from the Gplus Group to TSS personally, as evidenced by the bequeathing of CIDL's receivables in TSS's various wills. d) TSS and ST Goh executed YIL's written resolution authorising the Management Agreement with CIDL on 17.4.2007, when CIDL was not yet incorporated, making the resolution void ab initio. e) TSS and ST Goh, as the only directors of YIL at the material time, failed to disclose TSS's interest in CIDL in violation of the Hong Kong Companies Ordinance and YIL's articles of association, rendering the agreement void. f) The evidence from multiple credible witnesses including Michael Lee (Project Manager), Zhao Li Sheng, Yang Li Ru, and Xu Jie conclusively establishes that CIDL did not perform any of its obligations under the Management Agreement. g) The total failure of consideration renders the agreement void in addition to the fraud and breaches of fiduciary duty that characterised its inception. S/N Yvwtb2AFpk50KUgpFho0w Declaration on Invalidity of Acts Purportedly Exercised Under the Management Agreement [543] I declare that all acts purportedly exercised by TSS, ST Goh and Huang pursuant to the said Management Agreement and the Addendum and any actions and/or decisions taken pursuant thereto are null and void and of no effect on these grounds: a) As the CIDL Management Agreement is void ab initio, any powers purportedly derived from it are necessarily void. b) Huang was merely TSS's nominee holding shares in CIDL on trust for TSS, and executed documents upon TSS's instructions without question, as evidenced by his own admission in his Statutory Declaration. c) ST Goh breached his fiduciary duty to act independently and protect the Gplus Group's interests, admitting under cross-examination that he would “blindly sign anything TSS asked him to” and would only report to the Golden Plus board “whatever TSS wanted me to report or inform.” d) These parties acted throughout with knowledge of TSS's concealed interest in CIDL and with the S/N Yvwtb2AFpk50KUgpFho0w common purpose of diverting profits from the Gplus Group. Declaration on Invalidity of the Loan Agreement with Yong Chooi Lan [544] I declare that the YCL Loan Agreement dated 15.3.2008 entered into between the 3rd Plaintiff, GP BVI and Yong Chooi Lan was procured by fraud and/or breach of trust and/or breach of fiduciary duties and/or breach of contract, and is thereby null, void and/or of no effect on these grounds: a) The evidence establishes that Yong Chooi Lan is TSS's mistress and mother of Andrew, and was part of the conspiracy to defraud the Gplus Group through the artificial creation of debt. b) The purported loan agreement was executed without proper disclosure of Yong Chooi Lan's relationship with TSS, which constituted a material conflict of interest. c) The loan agreement was part of the systematic creation of artificial debts designed to enable TSS and his associates to maintain control over Golden Plus and its subsidiaries. S/N Yvwtb2AFpk50KUgpFho0w d) The loan agreement was procured through the same pattern of breaches of fiduciary duties that characterised the Management Agreement, with TSS and ST Goh failing to act in the best interests of the Gplus Group. Declaration Regarding Non-Advancement of Loan Funds [545] Further, I declare that Yong Chooi Lan did not advance the sum of USD3 million to and/or on behalf of Golden Plus and/or GP BVI pursuant to the alleged loan agreement dated 15.3.2008 between Yong Chooi Lan and GP BVI (YCL Loan Agreement) or otherwise on these grounds: a) No credible evidence has been presented to demonstrate that Yong Chooi Lan actually advanced any funds under the purported loan agreement. b) The purported loan forms part of the pattern of artificial debt creation utilised by TSS, his family members, and associates to attempt to gain control of the Gplus Group through litigation after TSS's death. c) The evidence establishes a systematic pattern of creating artificial debts to later be used as leverage to exert control over Golden Plus and S/N Yvwtb2AFpk50KUgpFho0w its subsidiaries, as part of the conspiracy to preserve the proceeds of fraud in TSS's estate. Injunctive Relief against Winding-Up Proceedings [546] Having found that the Defendants engaged in a systematic conspiracy to defraud the Gplus Group spanning more than two decades, I grant an Injunction restraining the Defendants or any one or more of them from in any way, whether by themselves or their nominees, directors, officers, partners, employees, servants, agents, representatives or any of them in combination or howsoever otherwise from in any way: a) commencing with the winding up of the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR; b) proceeding with or taking any further action or howsoever relying on any petition already filed in the event a winding up action has been commenced against the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR; c) appointing liquidators and/or receivers and managers or applying to court for such S/N Yvwtb2AFpk50KUgpFho0w appointments over the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR.; and d) howsoever acting upon and/or placing reliance on the alleged loans and/or advances to the Plaintiffs and/or its subsidiaries (which are the subject matter of these proceedings) including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR. Grounds for Granting Injunctive Relief [547] The Defendants have engaged in the artificial creation of debt with the ultimate purpose of using such fabricated debt as a vehicle to gain control over the Gplus Group. After TSS's death, the Defendants conspired to create artificial debts through various mechanisms including the purported loans under the Tenancy Agreements with Pacific Victor, the alleged USD3 million loan from Yong Chooi Lan to GP BVI, the purported advances by Andrew to Golden Plus, and the fabricated debts owed to CIDL. [548] The evidence demonstrates that the Defendants intended to abuse the winding-up process not as a legitimate means of debt recovery, but as a tactical manouvre to either gain control of the Gplus Group or destroy its corporate structure. S/N Yvwtb2AFpk50KUgpFho0w [549] After the EGM of 6.3.2020 where shareholders democratically voted to reconstitute the board of Golden Plus, the Defendants caused winding-up proceedings to be filed in the BVI against GP BVI on 24.8.2020 based on artificial debts, forcing the Plaintiffs to incur substantial legal expenses (USD50,535.01 and GBP15,454.01). [550] The Gplus Group comprises a complex corporate structure spanning multiple jurisdictions with the RGP and Dino Beach Water Park representing its crown jewels. A winding-up of any entity within this structure would fracture the corporate chain and potentially render worthless the investments of over 4,200 public shareholders in Golden Plus. [551] All of the alleged debts that could form the basis of any winding-up petition are demonstrably in dispute and subject to this litigation. The YCL Loan Agreement has been found to be procured by fraud and is null and void. The purported debts owed to CIDL arise from the Management Agreement and Addendum that are sham agreements procured through fraud and breach of fiduciary duties. [552] Having declared that the board of directors of Golden Plus appointed at the EGM of 6.3.2020 is the legitimate board of the company, this injunction is necessary to ensure that the shareholders' democratic will is respected and that the legitimately appointed board can function S/N Yvwtb2AFpk50KUgpFho0w effectively without the constant threat of winding-up proceedings based on fabricated debts. Injunction Against the Estate of TSS: Preventing Recovery of Fraudulently Claimed Salaries and Emoluments [553] I grant an injunction restraining the D3, D13, D14 and D15, the Personal Representatives of TSS, deceased, from relying on or acting upon or recovering or receiving or applying any salaries or emoluments or monies recorded as allegedly owing by the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR to TSS, deceased. Grounds for Granting Injunctive Relief [554] Having found that TSS was the mastermind behind a systematic fraud spanning over two decades, any alleged entitlement to salaries or emoluments by TSS must be scrutinised with extreme caution. The evidence establishes that TSS used his position as Corporate Representative and Legal Representative to create artificial documents and transactions designed to divert funds from the Gplus Group to himself and his nominees. [555] TSS's egregious breaches of fiduciary duty as a director, Corporate Representative, and Legal Representative of various companies within the Gplus Group disentitle his S/N Yvwtb2AFpk50KUgpFho0w estate from claiming any salaries or emoluments allegedly owed to him. The law is clear that a fiduciary who breaches his duties cannot profit from his wrongdoing. [556] The evidence demonstrates that part of the ongoing conspiracy after TSS's death involved attempts by his family members and associates to create artificial debts, including alleged unpaid salaries and emoluments, as a mechanism to gain control over the Gplus Group. These alleged debts are part of the fraudulent scheme and lack legitimacy. [557] The purported salary claims form part of the “artificial creation of debt” scheme identified in the evidence. Maria, Andrew, ST Goh, and others, acting in concert, have attempted to use these alleged salary claims as leverage to control or wind up the Gplus Group companies. [558] TSS received substantial unauthorised benefits through the sham CIDL Management Agreement and Manfield Lease Agreements, channeling profits that rightfully belonged to the Gplus Group to himself. Any salary claims would constitute double recovery and unjust enrichment. S/N Yvwtb2AFpk50KUgpFho0w [559] The evidence demonstrates that TSS siphoned substantial sums from the Dino Beach Water Park operations, as admitted by ST Goh who testified that TSS would take cash proceeds from the Dino Beach Water Park. These unauthorised withdrawals should offset any purported salary claims. [560] Allowing TSS's estate to recover alleged salary entitlements would frustrate the purpose of this litigation, which is to unwind the fraudulent schemes perpetrated by TSS and recover the misappropriated funds for the benefit of Golden Plus and its over 4,200 shareholders. Injunctive Relief Against Teh Wei Kian (Andrew) [561] I grant an injunction restraining Andrew from relying on or acting upon or recovering any monies recorded as allegedly owing by the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR to him. Grounds for Granting Injunctive Relief [562] The evidence establishes that Andrew fabricated a claim that Golden Plus owed him a total of RM1,195,317.96, as stated in a letter of demand issued by his solicitors on 4.12.2020. This purported debt comprised alleged advances made by Andrew to Golden Plus for various expenses including: S/N Yvwtb2AFpk50KUgpFho0w a) Legal fees for OS 354 and Suit 559; b) Payments for the company's operational and management costs including staff salaries (RM440,000); c) Expenses for a special audit by Messrs Rodgers Reidy & Co (RM37,490.08); and d) Other claimed expenses (RM21,094.30). [563] These alleged advances were part of the “artificial creation of debt” scheme identified in the evidence. The purported advances were not legitimate transactions but were manufactured as a mechanism to gain control over the Gplus Group after his father's death. [564] Andrew's claim is a continuation of the pattern where, after being legitimately removed as director by the shareholders at the EGM on 6.3.2020, he attempted to frustrate the will of the shareholders through various means including legal actions and claiming debts allegedly owed to him. [565] The evidence demonstrates that Andrew, in collaboration with Maria, ST Goh, TSH and Fai Fong, attempted to create artificial debts to be used as leverage to gain control over the Gplus Group or to frustrate the new board's ability to operate effectively. S/N Yvwtb2AFpk50KUgpFho0w [566] Andrew was instrumental in causing Golden Plus's subsidiary, Sri Serdang, to acknowledge a debt of RM2,503,315.80 with CIDL as at 26.7.2020. This was another component of the artificial debt creation scheme. [567] As established in the evidence, Andrew was involved in the attempt to fraudulently allot shares in Golden Plus without consideration, which aimed to create an artificial majority to seize control of Golden Plus. This scheme would have failed if Andrew could not maintain the fiction that he had advanced monies to Golden Plus. [568] The claim for RM1,195,317.96 was contrived with the assistance of Fai Fong, who initially included a payment of RM50,000 to Messrs Wee Choo Keong & Faaiz (CIDL's solicitors) as part of the amount due to Andrew. This further demonstrates the collaboration between the conspirators. [569] This injunction is necessary to ensure that Andrew does not use artificial claims to further the conspiracy that continued after TSS's death, which aimed to preserve the proceeds of fraud in his father's estate and maintain control over the Gplus Group's valuable assets. Order for Account, Inquiry and Restitution [570] I grant an Order for an account and inquiry against the Defendants and each of them and for the restitution of S/N Yvwtb2AFpk50KUgpFho0w property and/or payment of monies found to be due and/or profits earned by reason of being in receipt of such property and/or monies to the Plaintiffs upon the outcome of such account and inquiry. Grounds for Granting Relief [571] The evidence conclusively establishes that substantial sums were siphoned from the Gplus Group through the fraudulent CIDL Management Agreement, Manfield Lease Agreements, and Heng Fat Co-operation Agreement. Specifically, RMB114,102,428.00 was paid by YSL to CIDL and/or its nominees, and RMB52 million was paid by YSL to Heng Fat and/or its nominees, despite no services being rendered by these entities. [572] The Defendants who held fiduciary positions within the Gplus Group (TSS, ST Goh, TSH and Fai Fong) breached their fiduciary duties to act in the best interests of the companies they served. ST Goh candidly admitted under cross-examination that he partook in the distribution of cash proceeds from the Dino Beach Water Park with TSS, stating “it can be 1 million, it could be 2 million. It varies.” [573] The evidence from multiple credible witnesses with direct involvement in the RGP, including Michael Lee (Project Manager), Zhao Li Sheng, Yang Li Ru, and Xu Jie, conclusively establishes that CIDL did not perform its S/N Yvwtb2AFpk50KUgpFho0w purported management functions despite receiving substantial payments. Similarly, Manfield did not operate the Dino Beach Water Park as claimed. [574] There has been a complex web of transactions across multiple jurisdictions including Malaysia, British Virgin Islands, Hong Kong, and Shanghai, making it impossible for the Plaintiffs to precisely quantify the full extent of misappropriated funds without a formal accounting. The Defendants' systematic conspiracy to defraud spanning over two decades has deliberately obscured the money trail. [575] The principle of equity demands that those who breach fiduciary duties must account for all profits made in breach of their duty. An account and inquiry is the most appropriate remedy where there has been such extensive misappropriation of funds through fraudulent means and breach of fiduciary duties. [576] After TSS's death, there was a continuing effort by the Defendants to conceal the fraud and preserve its proceeds in TSS's estate through various means including the creation of artificial debts and attempts to gain control of the Gplus Group. These actions have further complicated the tracing of misappropriated funds. S/N Yvwtb2AFpk50KUgpFho0w [577] The requirement for the Defendants to account for their receipt and use of the misappropriated funds is necessary to determine the extent of restitution due to the Plaintiffs. Without such an account, the Plaintiffs cannot be restored to the position they would have been in but for the Defendants' wrongful actions. [578] This comprehensive accounting will ensure that all proceeds of fraud that have been diverted from the Gplus Group are properly identified and restored to their rightful owners. Special Damages and Tracing Orders [579] Having found that the CIDL Management Agreement and other impugned transactions were sham agreements created to siphon money from the Gplus Group, I order the following reliefs on these grounds. Special Damages of RMB166,102,428.00 [580] I grant special damages of RMB166,102,428.00 or its Ringgit Malaysia equivalent to the Plaintiffs on the following grounds: a) The evidence conclusively establishes that this sum represents the total amount fraudulently diverted from the Gplus Group through two specific channels: S/N Yvwtb2AFpk50KUgpFho0w i) RMB114,102,428.00 paid by YSL to CIDL and/or its nominees under the CIDL Management Agreement ii) RMB52 million paid by YSL to Heng Fat and/or its nominees b) These payments were made for services that were never rendered. Multiple witnesses with direct involvement in the RGP, including Michael Lee (Project Manager), Zhao Li Sheng, Yang Li Ru, and Xu Jie, testified unequivocally that CIDL had no physical presence or involvement in the development. They confirmed that CIDL did not manage YSL's bank accounts, provide any management services, or assist with obtaining planning permissions. c) The CIDL Management Agreement was void ab initio due to TSS's failure to disclose his beneficial ownership of CIDL when the agreement was executed. The evidence clearly established that TSS owned CIDL from its inception, with Huang acting merely as his nominee. d) These funds represent a direct, calculable financial loss to the Plaintiffs resulting from TSS's breaches of fiduciary duty and fraud. The S/N Yvwtb2AFpk50KUgpFho0w Plaintiffs are entitled to be restored to the position they would have been in had the fraud not occurred. Declaration for Tracing and Application of Assets [581] I declare that the assets and properties of the Estate of TSS, deceased, in the value of at least RMB166,102,428.00 be traced and thereafter applied to discharge the indebtedness of the Estate to the Plaintiffs on these grounds: a) Having fraudulently diverted RMB166,102,428.00 from the Gplus Group, TSS's estate stands liable for this amount. The evidence demonstrates that TSS was the architect of these fraudulent schemes and the primary beneficiary of the misappropriated funds. b) The court has equitable jurisdiction to trace funds that have been misappropriated through fraud or breach of fiduciary duty. This is particularly appropriate in this case where TSS deliberately used complex corporate structures and nominee arrangements to conceal his ownership and the flow of funds. S/N Yvwtb2AFpk50KUgpFho0w c) TSS's bequests in his various wills, including his Hong Kong Will and Codicil of 2014 and his Hong Kong Will of 2017, specifically included the receivables of CIDL and Manfield. These bequests provide a direct link between the misappropriated funds and his estate assets. d) The evidence established that TSS's estate passed his ill-gotten gains to various beneficiaries including Maria, Andrew, Valarie, ST Goh, and others. Equity demands that these assets be made available to satisfy the judgment against TSS's estate. Declaration on Assets Purchased with Misappropriated Funds [582] I declare that all assets and properties of the Estate of TSS purchased with the said sum of RMB166,102,428.00 belong to the Plaintiffs on these grounds: a) It is a fundamental principle of equity that property acquired with the proceeds of fraud or breach of fiduciary duty is held on constructive trust for the victim. TSS, having fraudulently diverted these funds from the Gplus Group, could not obtain better title to the assets purchased with these funds than he had to the funds themselves. S/N Yvwtb2AFpk50KUgpFho0w b) The misappropriated funds were never legitimately TSS's property but remained, in equity, the property of the Plaintiffs. Therefore, any assets acquired with these funds likewise belong to the Plaintiffs. c) This relief is necessary to ensure that the fraudster and his estate do not benefit from the wrongdoing, even when the specific funds have been converted into other forms of property. d) The evidence of systematic fraud spanning over two decades, meticulously concealed through nominee arrangements and sham agreements, justifies the imposition of a constructive trust over all assets traceable to the misappropriated funds. General Damages [583] Having found in favor of the Plaintiffs on their claims for fraud, conspiracy to defraud, and breach of fiduciary duties, I grant the following general damages which represent direct financial losses suffered by the Plaintiffs as a consequence of the Defendants' wrongful actions. S/N Yvwtb2AFpk50KUgpFho0w HKD10,200,000 for “Rent” Paid to Pacific Victor [584] I award the sum of HKD10,200,000 to the Plaintiffs for the payments made to Pacific Victor under the Tenancy Agreements on the following grounds: a) The evidence clearly establishes that the Tenancy Agreements between YIL and Pacific Victor dated 25.5.2017 and 27.4.2018 were not genuine commercial transactions but part of the broader scheme to siphon money from the Gplus Group. b) Pacific Victor is the corporate vehicle of Maria, TSS's widow, and the purported rental payments were in fact a mechanism to divert funds from YIL to TSS's family. c) The evidence demonstrates that TSS was already receiving a housing allowance of HKD100,000, while simultaneously claiming reimbursement for hotel accommodation during his visits to Hong Kong, resulting in impermissible “double-dipping.” d) No consideration was provided under these Tenancy Agreements as YIL received no benefit from them. The evidence shows that Maria Wu S/N Yvwtb2AFpk50KUgpFho0w and Valarie were residing at the premises, not YIL representatives. e) The Tenancy Agreements were later weaponised when Pacific Victor issued a statutory demand on 18.9.2020, shortly after the termination of the Management Agreement, as part of the conspiracy to seize control of the Gplus Group. f) Most egregiously, Maria was claiming rental payments for the period between 1.9.2017 to 28.2.2019, which included time after TSS had died on 23.3.2018. USD50,535.01 & GBP15,454.01 for Legal Fees to Defend Winding-Up Proceedings [585] I award the sums of USD50,535.01 and GBP15,454.01 to the Plaintiffs for legal fees incurred defending against malicious winding-up proceedings on the following grounds: a) After the EGM of 6.3.2020 where shareholders democratically voted to reconstitute the board of Golden Plus, the Defendants resorted to attempting to wind up GP BVI and Golden Plus. S/N Yvwtb2AFpk50KUgpFho0w b) The Defendants caused winding-up proceedings to be filed in the BVI against GP BVI on 24.8.2020 based on artificial debts that have been proven to be fraudulent in nature. c) These proceedings were not brought in good faith but were part of the Defendants' concerted strategy to either maintain control of the Gplus Group or, failing that, to destroy its corporate structure. d) The Plaintiffs were forced to incur substantial legal expenses to defend these vexatious proceedings, which represent a direct financial loss resulting from the Defendants' wrongful actions. e) The timing of these proceedings demonstrates they were a tactical manouvre in furtherance of the conspiracy rather than legitimate debt recovery efforts. RM346,810 for Legal Fees on OS 444, OS 432 & Suit 461 [586] I award RM346,810 for legal fees incurred by the Plaintiffs in OS 444, OS 432, and Kuala Lumpur High Court Suit No. WA-22NCC-461-09/2020 (“Suit 461”) on the following grounds: S/N Yvwtb2AFpk50KUgpFho0w a) These legal proceedings were directly related to the Defendants' unlawful attempts to maintain control of Golden Plus after the shareholders had democratically voted to reconstitute the board at the EGM on 6.3.2020. b) The evidence establishes that after the EGM, Maria, Andrew and others initiated various legal actions to obstruct the will of the shareholders and the functioning of the legitimately appointed board. c) These were frivolous legal manouvres designed solely to perpetuate their control over the Gplus Group and continue concealing the fraud. d) The Plaintiffs' expenses in defending these illegitimate actions constitute a recoverable loss resulting from the Defendants' wrongful conduct. RM42,399.90 for Replacement Costs of Title Documents [587] I award RM42,399.90 (comprising RM5,241.30 for Venice Heights, RM5,241.30.00 for Hanpopular, and RM31,917.30 for Sri Serdang) for costs incurred in replacing title documents on the following grounds: a) The evidence conclusively establishes that Andrew took possession of 58 title documents S/N Yvwtb2AFpk50KUgpFho0w belonging to Sri Serdang, Venice Heights, and Hanpopular on 14.8.2020, just two weeks before the High Court was due to deliver its decisions in the Adjourned EGM Actions. b) This taking of the title documents was not for legitimate business purposes but was part of the conspiracy to deprive the Gplus Group of control over its valuable assets. c) Despite demands for their return, Andrew initially denied possessing these documents in his letter dated 9.11.2020. d) While Andrew later claimed to have returned the documents to Mercia Simbaku, the Plaintiffs were forced to incur costs to replace these documents. e) The timing of the taking of these documents, just before crucial court decisions regarding board control, demonstrates that this was a calculated act in furtherance of the conspiracy. [588] These damages represent actual financial losses suffered by the Plaintiffs as a direct consequence of the Defendants' fraudulent conduct and conspiracy, and justice requires that they be compensated for these losses. S/N Yvwtb2AFpk50KUgpFho0w Joint and Several Liability of Defendants as Joint Tortfeasors in the Conspiracy to Defraud [589] This court has found that the Defendants engaged in a conspiracy to defraud the Plaintiffs through various schemes designed to siphon monies out of the Gplus Group of companies. These schemes included the CIDL Management Agreement, Manfield Lease Agreements, and purported arrangements with Heng Fat, as well as the artificial creation of debt to maintain control over the Gplus Group even after the demise of TSS. Having established the conspiracy to defraud, I must now determine the appropriate liability framework for the Defendants. The Plaintiffs submit that the Defendants, as joint tortfeasors, should be held jointly and severally liable for the totality of the damages caused by their conspiracy. [590] The principle of joint and several liability upon establishing a successful tort action is well-established in Malaysian law. When multiple parties are liable for the same loss and damage, each liable party is individually responsible for the whole loss and damage suffered. This principle was articulated by the High Court in Lembaga Kumpulan Wang Simpanan Pekerja v Suasa Kristal (M) Bhd & Ors [2009] 8 CLJ 236. The Federal Court in Desa Samudra Sdn Bhd v Bandar Teknik Sdn Bhd & Ors [2012] 1 MLJ 729 confirmed that joint tortfeasors may be jointly and severally liable for the total amount of the S/N Yvwtb2AFpk50KUgpFho0w subject matter, especially in situations where the acts of tort are indivisible. The court stated: “We accept that joint tortfeasors may be jointly and severally liable for the total amount of the subject matter where a tort action has successfully been established... But it is for the court to consider whether or not the acts of tort are said to be indivisible.” [591] This principle is further reinforced by the Supreme Court in Malaysian National Insurance Sdn Bhd v Lim Tiok [1997] 2 MLJ 165, which held that where the tort committed is indivisible, each tortfeasor is liable for the same damage. The Federal Court in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon [2006] 2 CLJ 1 clarified that joint and several liability on defendants as concurrent tortfeasors “is not premised on the contemporaneity of their actions but is determined by deciding whether their separate actions caused the plaintiff indivisible harm.” Importantly, in cases of conspiracy where tortfeasors act in concert for a common purpose, the justification for joint and several liability is even stronger. As held by the Court of Appeal in Lai Soon Onn v Chew Fei Meng and other appeals [supra], where two or more persons are liable for the tort of conspiracy or for breaches of trust, the liability of each is joint and several. S/N Yvwtb2AFpk50KUgpFho0w [592] In this case, the conspiracy to defraud perpetrated by the Defendants caused indivisible harm to the Plaintiffs. The evidence has established that the Defendants, though entering the conspiracy at different points in time and performing different roles, acted toward the common purpose of siphoning monies from the Gplus Group and preserving the proceeds of the fraud. The conspiracy occurred in two periods: the First Period (during TSS's lifetime) and the Second Period (after his demise). In the First Period, TSS orchestrated the fraudulent schemes with the participation of ST Goh, CIDL, Huang, TSH, Fai Fong, Pacific Victor and Maria. In the Second Period, additional participants joined the conspiracy, including Andrew, Valarie and Yong Chooi Lan, primarily to preserve TSS's estate and continue the perpetration of the fraud. Although the Defendants may argue that they should only be liable for their specific acts or for the periods in which they participated in the conspiracy, such an approach would be inconsistent with the established legal principles regarding joint tortfeasors in cases of conspiracy. The conspiracy in this case was continuous, with separate overt acts leading to the common end of perpetrating the fraud and preserving its proceeds. As held in The King and the Attorney General of the Commonwealth v Associated Northern Collieries, if several individuals are observed over time taking actions that clearly aim at achieving a single, evident objective, the court should decide whether their conduct amounts to an unlawful conspiracy. S/N Yvwtb2AFpk50KUgpFho0w [593] Once the combination and its purposes are proved, the acts of any part to it in furtherance of those purposes are attributable to all, as being within the scope and in execution of their common agreement.” The Defendants might contend that they should not be jointly and severally liable because they did not act contemporaneously or because their individual contributions to the conspiracy were limited. However, this argument fails to recognise that, as held in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon, joint and several liability is determined by whether their separate actions caused indivisible harm, not by the contemporaneity of their actions. [594] Some Defendants may also argue that they were merely following orders or were unaware of the full extent of the conspiracy. Such arguments cannot succeed in the face of evidence showing they knowingly participated in acts that furthered the conspiracy. As held by Nourse LJ in Kuwait Oil Tanker, parties to a conspiracy must be “sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of.” In this case, the evidence clearly demonstrates that the Defendants were aware of the circumstances and shared the same object - to siphon monies from the Gplus Group and preserve the proceeds of the fraud. Their actions, though different in nature and occurring at different times, caused indivisible harm to the Plaintiffs. S/N Yvwtb2AFpk50KUgpFho0w [595] Based on the foregoing, I find that all Defendants who have been determined to be part of the conspiracy to defraud are jointly and severally liable for the total amount of damages suffered by the Plaintiffs, which has been established to be RMB166,103,428.00. The Defendants are also jointly and severally liable to provide an account and inquiry for restitution of property and/or payments of monies found to be due and/or profits earned by reason of being in receipt of such property and/or monies, as sought in prayer 70(x) of the SOC. Furthermore, the court will grant the declarations and orders sought in prayers 70(xii) and (xiii) relating to the tracing of assets of TSS to discharge the indebtedness of his estate to the Plaintiffs, and to decree such assets as belonging to the Plaintiffs to the value of at least RMB166,103,428.00. This approach to liability ensures that the Plaintiffs receive full compensation for the harm caused by the conspiracy and prevents any tortfeasor from escaping liability merely because they played a smaller role or participated for a shorter duration in the overall conspiracy. Exemplary Damages [596] The Plaintiffs seek exemplary damages against the Defendants on account of their conduct. Exemplary damages are punitive in nature and are intended to punish a wrongdoer for particularly egregious conduct that goes beyond what is required for compensatory S/N Yvwtb2AFpk50KUgpFho0w relief. They serve both to express the court's condemnation of the defendant's behavior and to deter similar conduct in the future. [597] The principles governing the award of exemplary damages in Malaysia are well-established. In Rookes v Barnard [1964] AC 1129 (HL), which has been adopted in Malaysia, Lord Devlin identified categories where exemplary damages may be awarded: a) Where there has been oppressive, arbitrary or unconstitutional action by servants of the government; b) Where the defendant's conduct was calculated to make a profit which might well exceed the compensation payable to the plaintiff; and c) Where such an award is expressly authorised by statute. [598] Malaysian courts have applied these principles while recognising that exemplary damages serve a dual purpose: to punish the defendant for outrageous conduct and to deter others from similar behavior. The courts have emphasised that such damages are reserved for cases involving particularly reprehensible conduct that warrants punishment beyond mere compensation. S/N Yvwtb2AFpk50KUgpFho0w [599] In determining whether to award exemplary damages, and their quantum, the court must consider: a) The nature and extent of the defendant's misconduct; b) The motive behind that misconduct; c) The relationship between the parties; and d) Whether the defendant acted in a contumelious disregard of the plaintiff's rights. [600] In the present case, the court finds that the conduct of the Defendants falls squarely within the second category enunciated in Rookes v Barnard, namely conduct calculated to make a profit exceeding the compensation payable to the Plaintiffs. The entire scheme orchestrated by the Defendants was designed to siphon monies out of the Gplus Group for their personal benefit, with full knowledge that their gains would substantially exceed any compensation they might eventually be required to pay. [601] The court has found that the Defendants engaged in a conspiracy to defraud the Plaintiffs through various schemes designed to divert funds from the Gplus Group. These schemes included the Management Agreement, Manfield Lease Agreements, and purported S/N Yvwtb2AFpk50KUgpFho0w arrangements with Heng Fat, as well as the artificial creation of debt to maintain control over the Gplus Group. [602] What makes the Defendants' conduct particularly egregious and deserving of exemplary damages is the following. [603] First, the breach of trust was extensive and calculated. The Defendants were not mere third parties but officers and fiduciaries of the Gplus Group, holding positions of significant trust and responsibility. They exploited these positions to execute their fraudulent schemes, betraying the very entities they were duty-bound to protect. [604] Second, there was clear evidence of premeditation and sophistication in the fraud. The Defendants carefully structured the impugned transactions, created companies specifically for the purpose of executing these frauds, and maintained elaborate facades to conceal their wrongdoing. [605] Third, the Defendants' conduct subsequent to the initial fraud demonstrates a contumelious disregard for the rights of the Plaintiffs and the rule of law. When their control over the Gplus Group was threatened, they resorted to extraordinary measures, including: S/N Yvwtb2AFpk50KUgpFho0w a) Attempting to seize control of Golden Plus through the surreptitious appointment of Andrew to the Board; b) Abusing court processes to entrench their control; c) Creating artificial debts and attempting to use these as vehicles to wind up Golden Plus; and d) Most egregiously, attempting to allot shares fraudulently in contravention of securities laws to create an artificial majority and defeat the will of over 4,000 shareholders. [606] These acts were not merely opportunistic; they were calculated, sustained, and deliberate efforts to protect ill-gotten gains and perpetuate the fraud, showing complete disregard for corporate governance, fiduciary obligations, and the law. [607] The Court of Appeal decision in Sin Heap Lee-Marubeni Sdn Bhd v Yip Sou Shan [supra] provides valuable guidance on the quantum of exemplary damages appropriate in cases involving breach of fiduciary duties and fraud. In that case, the Court of Appeal upheld an award of exemplary damages equivalent to 25% of the compensatory damages assessed. S/N Yvwtb2AFpk50KUgpFho0w [608] In Sin Heap Lee-Marubeni, the defendants had acted dishonestly in diverting business opportunities away from the plaintiff company. The court found that the defendants had abused their positions of trust and had deliberately sought to make profits at the expense of the company they were duty-bound to serve. [609] The present case involves misconduct that is at least as serious, if not more so, than that in Sin Heap Lee-Marubeni. The Defendants in this case engaged in a prolonged conspiracy spanning over two decades, involved multiple jurisdictions, and impacted a public listed company with over 4,200 shareholders. The fraud was not merely opportunistic but was systematic, calculated, and executed with precision. [610] Having regard to all the circumstances, and guided by the principles articulated in Sin Heap Lee-Marubeni, I find that this is an appropriate case for the award of exemplary damages. I award exemplary damages at 25% of the compensatory damages awarded to the Plaintiffs [611] This award serves not only to punish the Defendants for their egregious conduct but also to deter similar misconduct in the future, particularly in the context of corporate governance and fiduciary relationships. It sends a clear message that breaches of trust and fiduciary duties, especially when coupled with fraud and conspiracy, will not be tolerated by the courts and will S/N Yvwtb2AFpk50KUgpFho0w attract significant financial penalties beyond mere compensation. INTEREST AND BASIS OF COSTS Interest [612] The court acknowledges the Plaintiffs' request for interest to run from various crystallisation dates dating back to 2009 to 2010 for the major sums and from subsequent dates for other items of damage. However, in exercising my judicial discretion, I have determined that interest shall run from the date of judgment for the following reasons: a) The court has already awarded substantial compensatory damages totaling RMB166,102,428 (approximately RM105 million based on current exchange rates), along with additional general damages of HKD10,200,000, USD50,535.01, GBP15,454.01, and RM346,810, plus exemplary damages of 25% of the compensatory amount. Given the significant size of these awards, which already provide substantial redress to the Plaintiffs, adding pre-judgment interest dating back more than a decade would result in a disproportionate final sum. S/N Yvwtb2AFpk50KUgpFho0w b) The Plaintiffs have claimed interest on nine different sums, with different crystallisation dates spanning from 2009 to 2022, in four different currencies. Calculating interest from these various dates would create unnecessary complexity and administrative burden in what is already an extraordinarily complex case involving multiple jurisdictions, parties, and claims. c) While the court recognises the Plaintiffs have been deprived of funds over a significant period, it must also consider that complex commercial fraud cases inherently take time to investigate and bring to trial. The substantial exemplary damages already awarded (25% of compensatory damages) partially addresses the time value of money lost by the Plaintiffs. d) Applying a uniform interest rate from the date of judgment promotes clarity and certainty in enforcement and ensures that all defendants face the same interest obligations regardless of which specific aspect of the conspiracy they were most involved in. [613] The court therefore orders that interest at the rate of 5% per annum shall run on all damages awarded from the date of this judgment until full payment. S/N Yvwtb2AFpk50KUgpFho0w Basis of Costs [614] After careful consideration, I award costs on the standard basis to the Plaintiffs. While the court has found fraud and conspiracy against the Defendants, I note that during the course of this complex trial, the Defendants and their counsel maintained proper conduct and decorum. The litigation process itself was not marked by procedural abuses, unnecessary adjournments, or conduct that would ordinarily warrant indemnity costs. [615] Furthermore, the involvement of the various Defendants in the conspiracy varied significantly in nature and degree. In particular, Fai Fong, while found liable as part of the broader conspiracy, played a more peripheral role compared to the architects of the scheme. A uniform order for indemnity costs against all Defendants would be disproportionate given these varying degrees of culpability. [616] While indemnity costs may be appropriate in cases of fraud, they remain an exceptional remedy rather than the rule. The judicial discretion to award costs must be exercised with restraint and proportionality, even in cases involving serious misconduct. The standard basis for costs sufficiently recognises the Plaintiffs' success while maintaining the proportionality principle that underpins our costs regime. S/N Yvwtb2AFpk50KUgpFho0w [617] The Plaintiffs have already been awarded substantial compensatory and exemplary damages that reflect the serious nature of the Defendants' conduct. The purpose of costs is not to further punish the Defendants but to reasonably compensate the Plaintiffs for expenses incurred in litigation. Standard costs adequately serve this purpose.
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Declarations [618] In respect of the declaratory reliefs, I make the following orders: a) That the Management Agreement dated 25.7.2007 and the Addendum dated 20.12.2012 entered into between YIL and CIDL were procured by fraud and/or breach of trust and/or breach of fiduciary duties and/or breach of contract, and are thereby null and void, not binding and unenforceable. b) That all acts purportedly exercised by TSS, ST Goh and Huang pursuant to the said Management Agreement and the Addendum and any actions and/or decisions taken pursuant thereto are null and void and of no effect. S/N Yvwtb2AFpk50KUgpFho0w c) That the YCL Loan Agreement dated 15.3.2008 entered into between the 3rd Plaintiff, GP BVI and Yong Chooi Lan was procured by fraud and/or breach of trust and/or breach of fiduciary duties and/or breach of contract, and is thereby null, void and/or of no effect. d) That Yong Chooi Lan did not advance the sum of USD3 million to and/or on behalf of Golden Plus and/or GP BVI pursuant to the YCL Loan Agreement dated 15.3.2008 between Yong Chooi Lan and GP BVI or otherwise. Injunctive Relief [619] In respect of the injunctive reliefs, I grant the following: a) An Injunction restraining the Defendants or any one or more of them from in any way, whether by themselves or their nominees, directors, officers, partners, employees, servants, agents, representatives or any of them in combination or howsoever otherwise from in any way: i) commencing with the winding up of the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR; S/N Yvwtb2AFpk50KUgpFho0w ii) proceeding with or taking any further action or howsoever relying on any petition already filed in the event a winding up action has been commenced against the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR; iii) appointing liquidators and/or receivers and managers or applying to court for such appointments over the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR.; and iv) howsoever acting upon and/or placing reliance on the alleged loans and/or advances to the Plaintiffs and/or its subsidiaries (which are the subject matter of these proceedings) including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR. b) I grant an injunction restraining the D3, D13, D14 and D15, the Personal Representatives of TSS, deceased, from relying on or acting upon S/N Yvwtb2AFpk50KUgpFho0w or recovering or receiving or applying any salaries or emoluments or monies recorded as allegedly owing by the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR to TSS, deceased. c) I grant an injunction restraining Andrew from relying on or acting upon or recovering any monies recorded as allegedly owing by the Plaintiffs and/or the Plaintiffs' subsidiaries including but not limited to YIL, YSL, GCE, Shanghai Roxy and Shanghai QSR to him. Order for Account, Inquiry and Restitution [620] I grant an Order for an account and inquiry against the Defendants and each of them and for the restitution of property and/or payment of monies found to be due and/or profits earned by reason of being in receipt of such property and/or monies to the Plaintiffs upon the outcome of such account and inquiry. Damages and Monetary Relief Special Damages of RMB166,102,428.00 and related orders [621] I grant special damages of RMB166,102,428.00 or its Ringgit Malaysia equivalent to the Plaintiffs, with the S/N Yvwtb2AFpk50KUgpFho0w Defendants being jointly and severally liable for this sum, representing the total amount fraudulently diverted from the Gplus Group through: a) RMB114,102,428.00 paid by YSL to CIDL and/or its nominees under the Management Agreement; and b) RMB52 million paid by YSL to Heng Fat and/or its nominees [622] I order that the assets and properties of the Estate of TSS, deceased, in the value of at least RMB166,102,428.00 be traced and thereafter applied to discharge the indebtedness of the Estate to the Plaintiffs; and [623] I declare that all assets and properties of the Estate of TSS purchased with the said sum of RMB166,102,428.00 belong to the Plaintiffs. General Damages [624] I award the following sums, with the Defendants being jointly and severally liable for these sums, as general damages: S/N Yvwtb2AFpk50KUgpFho0w a) HKD10,200,000 to the Plaintiffs for the payments made to Pacific Victor under the Tenancy Agreements; b) USD50,535.01 and GBP15,454.01 to the Plaintiffs for legal fees incurred defending against malicious winding-up proceedings; c) RM346,810 for legal fees incurred by the Plaintiffs in OS 444, OS 432, and Suit 461; and d) RM42,399.90 (comprising RM5,241.30 for Venice Heights, RM5,241.30.00 for Hanpopular, and RM31,917.30 for Sri Serdang) for costs incurred in replacing title documents. Exemplary Damages [625] I award exemplary damages in the sum of 25% of the compensatory damages assessed. Interest and Costs [626] I award interest at 5% per annum on the awarded sums from the date of this judgment. [627] I award costs on a standard basis to the Plaintiffs. For D3, D13, D14 and D15, costs are to be paid from the S/N Yvwtb2AFpk50KUgpFho0w Estate of TSS and not to be borne by the Representatives personally. QUANTUM OF COSTS [628] The court reserved its decision on the quantum of costs after having first delivered its decision on 13.3.2025 allowing the Plaintiffs' claim against all Defendants. Written Broad Grounds of Judgment were issued. To recap, the judgment found the Defendants jointly and severally liable for fraud and conspiracy, with substantial compensatory and exemplary damages awarded to the Plaintiffs. I had ordered costs on the standard basis in favour of the Plaintiffs and directed the parties to submit on the quantum of costs to be awarded. [629] The court invited parties to submit on the quantum of costs and having considered the submissions, my decision and grounds on the quantum of costs are as below. RESPECTIVE PARTIES' SUBMISSIONS Plaintiffs' Submissions [630] The Plaintiffs seek costs in the sum of RM5,931,257.56, comprising RM4,750,000 for getting up and RM1,181,257.56 for disbursements. They also seek a S/N Yvwtb2AFpk50KUgpFho0w Certificate for Two Counsel pursuant to Order 59 Rule 14 of the Rules of Court 2012. [631] The Plaintiffs submit that the quantum sought is justified by the exceptional complexity of the case, involving businesses and transactions across multiple jurisdictions, the urgency with which the suit had to be pursued, the significance of the case to the Plaintiffs, the cross-border implications of the litigation, the complexity of proving fraud and conspiracy, and the volume and scale of the proceedings. [632] The Plaintiffs contend that the quantum sought is not unprecedented, citing cases such as MIDF Amanah Investment Bank Berhad & Ors v Pesaka Astana (M) Sdn Bhd & Ors in Kuala Lumpur High Court Civil Suit No. D5(D6)-22-1810-2005, AmTrustee Berhad & Ors v Aldwich Bhd & Ors in Kuala Lumpur High Court Suit No. 22NCC-1622-11/2012, Looh Keo v Looh Chee Peng & Ors [2024] 1 CLJ 467 (HC) and “the BVI Suits”: Kuala Lumpur High Court Suits No. WA-22NCC-443-08/2019 (“Suit 443”), WA-22NCC-560-10/2019 (“Suit 560”) and Suit 601 where costs of over RM1 million or more were awarded. Pacific Victor, Valarie, Maria, D13 and D14 [633] Pacific Victor, Valarie, Maria, D13 and D14 submit that the quantum of costs should be significantly lower, S/N Yvwtb2AFpk50KUgpFho0w proposing RM50,000 for D2, RM50,000 for D5 and D6, and RM150,000 for D13 and D14. They argue that their involvement in the conspiracy was minimal, they were not aware of or involved in many of the fraudulent schemes, the loss caused was limited, and their closing submissions were brief. [634] They also submit that there are no findings of personal wrongdoing against the Personal Representatives of TSS's UK Estate (D13) and HK Estate (D14) in their representative capacity, and as such, the costs should be paid out of TSS's estate. TS Goh’s Submissions [635] TS Goh submits that a sum of RM50,000 would be fair and proportionate, arguing that he was neither the principal defendant nor the primary instigator of the alleged fraud and conspiracy, that he and his counsels maintained proper conduct and decorum during the trial, and that his involvement was significantly lesser compared to other Defendants. TSH’s Submissions [636] TSH proposes costs of RM50,000, arguing that despite the trial lasting 33 days, it was conducted via an online platform which reduced costs, that he and his counsel maintained proper conduct and did not cause any delay, S/N Yvwtb2AFpk50KUgpFho0w that he was not the primary defendant or main protagonist of the alleged fraud, and that the Plaintiffs have already been awarded substantial compensatory and exemplary damages. Andrew and Yong Chooi Lan’s Submissions [637] Andrew and Yong Chooi Lan propose costs of RM100,000 in total, submitting that no novel or complex issues of law were raised in the trial, that the allegations against them were limited (the allegations against Andrew were limited to the Second Period, and those against Yong Chooi Lan were confined to the YCL Loan Agreement), that they acted properly throughout the proceedings, and that there was substantial overlap in the work done by the Plaintiffs' Counsel against all Defendants. D15’s Submissions [638] D15 submits that he played no active role in this suit, was added as a Defendant by the court, and were unable to obtain any money to pay his solicitors' legal fees. D15 requests that costs be paid out of the estate of TSS (China Will) rather than personally. S/N Yvwtb2AFpk50KUgpFho0w Fai Fong and D3’s Submissions [639] Fai Fong in her personal capacity and as D3 propose costs of RM150,000 for D3 (to be paid out of the estate of TSS) and RM50,000 for Fai Fong personally. It is submitted that there is no allegation of personal wrongdoing against Fai Fong in her representative capacity, that personally she played a more peripheral role in the conspiracy, and that she maintained proper conduct throughout the proceedings. ANALYSIS AND FINDINGS OF THE COURT Legal Framework for Assessment of Costs [640] The Plaintiffs rely on Order 59 Rule 16 and Rule 19 of the Rules of Court 2012, which provide for the discretion of the court in awarding costs and the factors to be considered in assessing costs. [641] The Defendants similarly rely on Order 59 Rule 16 and Rule 19, emphasising Rule 16(3) which provides that on an assessment of costs on the standard basis, there shall be allowed a reasonable amount in respect of all costs reasonably incurred, and any doubts shall be resolved in favour of the paying party. S/N Yvwtb2AFpk50KUgpFho0w [642] It is trite that the quantum of costs to be awarded is at the discretion of the court. Order 59 Rule 19 of the Rules of Court 2012 stipulates that in fixing the costs payable, the court shall have regard to the relevant circumstances including but not limited to the factors set out in Order 59 Rule 16. [643] Order 59 Rule 16(1) sets out the relevant factors to be considered: a) the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved; b) the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the solicitor or counsel; c) the number and importance of the documents, however brief, prepared or perused; d) the place and circumstances in which the business involved is transacted; e) the importance of the cause or matter to the client; f) where money or property is involved, its amount or value; S/N Yvwtb2AFpk50KUgpFho0w g) any other fees and allowances payable to the solicitor or counsel in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question. [644] Order 59 Rule 16(3) provides that on an assessment of costs on the standard basis, there shall be allowed a reasonable amount in respect of all costs reasonably incurred, and any doubts as to whether the costs were reasonably incurred or reasonable in amount shall be resolved in favour of the paying party. [645] I have previously determined in my Broad Grounds of Judgment (at paragraphs 573-576) and reflected above in paragraphs 614 to 617 that costs should be awarded on the standard basis. I noted that despite finding fraud and conspiracy against the Defendants, during the complex trial, the Defendants and their counsel maintained proper conduct and decorum, and the litigation process itself was not marked by procedural abuses or unnecessary adjournments. [646] I also observed that the involvement of the various Defendants in the conspiracy varied significantly in nature and degree, and that a uniform order for indemnity costs against all Defendants would be disproportionate given these varying degrees of culpability. S/N Yvwtb2AFpk50KUgpFho0w [647] I further noted that the Plaintiffs had already been awarded substantial compensatory and exemplary damages that reflect the serious nature of the Defendants' conduct, and that the purpose of costs is not to further punish the Defendants but to reasonably compensate the Plaintiffs for expenses incurred in litigation. [648] With these principles in mind, I now proceed to assess the quantum of costs. Complexity of the Case and Work Involved [649] The Plaintiffs contend that this case constitutes an exceptionally complex corporate commercial dispute, involving businesses and transactions across multiple jurisdictions over a period of two decades. They argue that the scale and prolonged duration of the fraud and conspiracy necessitated an expansive legal effort, demanding significant skill, experience, and forensic scrutiny to unravel. [650] Several Defendants (particularly Andrew, Yong Chooi Lan) argue that while the case as a whole was complex, there were no novel or complex issues of law raised, and the main issues in dispute were factual in nature. They submit that the complexity varied significantly with respect to different Defendants, with the case against some Defendants involving fewer allegations and being S/N Yvwtb2AFpk50KUgpFho0w less complex than the case against the main architects of the alleged conspiracy. [651] I accept the Plaintiffs' submission that this was an exceptionally complex commercial dispute. The factual matrix spanned over two decades and involved multiple corporate entities and individuals across several jurisdictions. The fraudulent schemes were sophisticated and meticulously designed to siphon substantial sums from the Plaintiffs. [652] The complexity of this case is comparable to, if not exceeding, that of AmTrustee Berhad & Ors v Aldwich Bhd & Ors, where Justice Lau Bee Lan managed a 49- day trial involving multiple financial institutions and professional service providers. In that matter, the court had to unravel complex financial transactions related to bond issuances and determine professional negligence claims. The present case similarly required detailed analysis of sophisticated financial structures, but with the additional complexity of cross-border transactions spanning several jurisdictions and a conspiracy extending over two decades. [653] This case also bears similarities to Looh Keo v Looh Chee Peng & Ors, which involved a dispute over beneficial ownership of shares across multiple companies. However, the present case involved more documents (over 7,000 pages compared to the S/N Yvwtb2AFpk50KUgpFho0w documentation in Looh Keo), more parties across more jurisdictions, and a significantly more complex conspiracy spanning a longer period. [654] The Defendants' argument that no novel or complex issues of law were raised misses the point. The complexity of this case lay not in novel legal principles but in the extensive factual investigation required to piece together a conspiracy spanning decades, the voluminous documentary evidence that had to be analysed, and the challenging task of extracting truthful testimony from witnesses who had participated in or were aware of the fraudulent schemes. [655] The trial lasted 33 days, with thousands of pages of documents, extensive witness testimony, and complex expert evidence. The Plaintiffs had to address 8 different Defences from 7 sets of solicitors, each presenting separate legal and factual challenges. The post-trial written submissions were voluminous, with the Plaintiffs' Closing Submissions alone comprising 349 pages, supported by extensive Bundles of Authorities. In total, the parties filed 1322 pages of written submissions. [656] While I accept that the involvement of the various Defendants in the conspiracy varied in nature and degree, this does not significantly reduce the work required of the Plaintiffs' counsel. The Plaintiffs had to establish the existence of the overall conspiracy and the S/N Yvwtb2AFpk50KUgpFho0w roles played by each Defendant within that conspiracy. This required a comprehensive understanding of the entire factual matrix, regardless of whether a particular Defendant played a central or peripheral role. [657] Given the exceptional complexity of the case and the substantial work involved, I find that the Plaintiffs are entitled to a significant award of costs. Varying Degrees of Involvement of the Defendants [658] Several Defendants argue that their involvement in the conspiracy was limited or peripheral compared to other Defendants, and that this should be reflected in a lower award of costs against them. For instance, TS Goh argues that he was “neither the principal defendant nor the primary instigator of the alleged fraud and conspiracy.” Fai Fong highlights my finding in the Broad Grounds of Judgment that she “played a more peripheral role compared to the architects of the scheme.” [659] The Plaintiffs, on the other hand, argue that all Defendants were found jointly and severally liable for the conspiracy, and that establishing the case against each Defendant required significant work regardless of their perceived level of involvement. S/N Yvwtb2AFpk50KUgpFho0w [660] In my Broad Grounds of Judgment at paragraph 573 and at 615 above, I indeed noted that “the involvement of the various Defendants in the conspiracy varied significantly in nature and degree.” I specifically mentioned Fai Fong as playing “a more peripheral role compared to the architects of the scheme.” [661] However, this observation was made in the context of explaining why costs were awarded on the standard basis rather than on an indemnity basis. It does not necessarily follow that Defendants with supposedly “peripheral” roles should be liable for substantially lower costs. [662] This approach is consistent with the reasoning in the “BVI Suits,” suits with overlapping parties and facts with those in the instant case, where Justice Ahmad Fairuz found that even defendants with varying degrees of involvement should bear substantial costs when they have been found liable as part of a conspiracy. In that case, the court noted that: “The complexity in [the suits] arises from the strong allegations made in each Statement of Claim. Allegations are easily made, but rebutting them is not always straightforward. The meticulous efforts by the Defendants in both suits... prevented the allegations from being accepted as truth.” In the present case, the Defendants similarly mounted comprehensive defences against allegations of conspiracy, requiring the Plaintiffs to commit substantial resources to establish the case against each of them. S/N Yvwtb2AFpk50KUgpFho0w [663] All Defendants were found jointly and severally liable for the conspiracy. The work required to establish the conspiracy against each Defendant involved a comprehensive analysis of the entire factual matrix, regardless of whether a particular Defendant played a central or peripheral role. [664] Nevertheless, I accept that there are some differences in the extent of work required to establish the case against different Defendants, particularly where a Defendant's involvement was limited to a specific time period or transaction. This may justify some variation in the costs awarded against different Defendants, but not to the extreme degree suggested by some Defendants. [665] In particular, I note that the Personal Representatives of TSS (D3, D13, D14, and D15) are in a different position, as they are sued in their representative capacity rather than personally. I will address their position separately. Overlap in Work Done by the Plaintiffs' Counsel [666] Andrew and Yong Chooi Lan argue that there was substantial overlap in the work done by the Plaintiffs' Counsel against all Defendants, as the Plaintiffs took the position that the entire suit involved one singular broad cause of action for fraud and conspiracy, rather than running different cases against different Defendants. They submit that the Plaintiffs should be awarded one S/N Yvwtb2AFpk50KUgpFho0w global sum for the entire case, which is then divided and apportioned between the Defendants. [667] The Plaintiffs contend that establishing the case against each Defendant required distinct work, particularly given the different roles each Defendant played in the conspiracy and the separate defences mounted by each set of Defendants. [668] I accept that there was some overlap in the work done by the Plaintiffs' Counsel against all Defendants, particularly in establishing the existence of the overall conspiracy. However, the Plaintiffs still had to establish the specific role played by each Defendant within that conspiracy, and had to address the distinct defences raised by each set of Defendants. [669] The Defendants were represented by 7 separate sets of solicitors, each filing separate sets of pleadings, witness statements, bundles of documents, written submissions, reply submissions, and executive summaries. The Plaintiffs had to respond to 10 sets of written submissions from the Defendants and prepare executive summaries for each set of Defendants. [670] This is not a case where the Plaintiffs can simply be awarded one global sum to be divided among the Defendants. The work required to establish the case against each Defendant, while having some overlap, was S/N Yvwtb2AFpk50KUgpFho0w sufficiently distinct to justify a more nuanced approach to costs. [671] Nevertheless, I accept that the total costs awarded against all Defendants should not exceed what would be reasonable for the case as a whole, taking into account the overlap in work done. Certificate for Two Counsel [672] The Plaintiffs seek a Certificate for Two Counsel pursuant to Order 59 Rule 14 of the Rules of Court 2012, arguing that the complexity of the case, the skill and specialised knowledge required, the volume of documents, and the necessity of addressing 7 separate sets of Defendants' counsel justify the certificate. [673] Pacific Victor, Valarie, Maria, D13 and D14 argue that the Plaintiffs have not provided sufficient justification for a Certificate for Two Counsel. Andrew and Yong Chooi Lan submit that the Plaintiffs should only be allowed to seek costs in relation to services rendered by their lead Counsel alone, citing the case of Fish & Co Restaurants Pte Ltd v Revenue Valley Sdn Bhd & Ors [2010] CLJU 432 (HC). [674] Order 59 Rule 14 of the Rules of Court 2012 provides: S/N Yvwtb2AFpk50KUgpFho0w “(1) The fees for more than one counsel for one party or set of defendants shall not be allowed unless the Court or Judge at the hearing so certifies. (2) Such fees may be allowed notwithstanding that both counsels are members of the same firm of solicitors.” [675] In PT Indofood Interna Corp & Ors v Far East Food Industries Sdn Bhd (in liquidation) & Ors [2006] 7 MLJ 410 (HC), Abdul Wahab Patail J (as his Lordship was then) set out the factors to be considered: a) The nature of the case; b) The importance of the client; c) The amount of damages likely to be recovered; d) The general importance of the case; e) Particular requirements of the case for example the need for special expertise; and f) Other reasons why an experienced and senior advocate may be required. [676] In that case, the court certified fees for two counsel where the defence “was not conducted with a view to obtaining a fair and just decision in an expeditious and economical manner, but sought to raise issues at every turn and stage” and “the plaintiffs' counsel had to thread a very S/N Yvwtb2AFpk50KUgpFho0w fine line between keeping the case focused on its issue of merits yet at the same time to answer each and every argument raised on every possible issue.” [677] The complexity of this case exceeds even that seen in AmTrustee Berhad & Ors v Aldwich Bhd & Ors, where multiple counsel were involved given the complex financial transactions and professional negligence claims. In that case, which involved major financial institutions and spanned 49 days of trial, the complexity of the issues justified substantial legal resources. The present case, with its cross-border elements, allegations of fraud spanning two decades, and 15 defendants represented by 7 sets of solicitors, clearly warrants certification for two counsel. [678] In Looh Keo v Looh Chee Peng & Ors, the court similarly recognised that complex family disputes involving corporate entities and allegations of fraud require substantial legal resources. In that case, as in the present matter, the court had to evaluate intricate factual matrices and assess competing claims regarding beneficial ownership of shares across multiple companies. [679] I am satisfied that this case warrants a Certificate for Two Counsel. The exceptional complexity of the case, the volume of documentary evidence, the multiple jurisdictions involved, the need to address 7 separate sets of Defendants' counsel each raising different issues, S/N Yvwtb2AFpk50KUgpFho0w and the difficulty of establishing fraud and conspiracy over a period of two decades all support this conclusion. [680] The case of Fish & Co Restaurants Pte Ltd v Revenue Valley Sdn Bhd & Ors is distinguishable. While Justice Mary Lim recognised in Fish & Co that counsel of Mr. Michael Soo's stature might reasonably require the services of junior counsel in a relatively less complex commercial matter, the present case involving large-scale international fraud across multiple jurisdictions over two decades presents an even stronger case for certification of two counsel. The volume of documents (over 7,000 pages), the number of witnesses (15 in total), the complexity of the financial transactions, and the need to address 7 different sets of arguments from the Defendants' counsel all justify the certification of two counsel in this case. [681] Accordingly, I certify fees for two Counsel pursuant to Order 59 Rule 14 of the Rules of Court 2012. Quantum of Costs [682] The Plaintiffs seek costs in the total sum of RM5,931,257.56, comprising RM4,750,000 for getting up and RM1,181,257.56 for disbursements. They argue that this quantum is justified by the exceptional complexity of the case and the substantial work involved, and is not unprecedented in complex commercial cases. S/N Yvwtb2AFpk50KUgpFho0w [683] The Defendants propose much lower sums: Pacific Victor, Valarie, Maria, D13 and D14 propose around RM50,000 each; Andrew and Yong Chooi Lan propose RM100,000 in total; and D3, D13, and D14 (the Personal Representatives of TSS) propose around RM150,000 each. [684] The quantum of costs sought by the Plaintiffs is undoubtedly substantial. However, given the exceptional complexity of the case, the volume of work involved, and the precedents cited by the Plaintiffs, I do not find it to be grossly disproportionate. [685] The Plaintiffs cite cases such as MIDF Amanah Investment Bank Berhad & Ors v Pesaka Astana (M) Sdn Bhd & Ors, AmTrustee Berhad & Ors v Aldwich Bhd & Ors and Looh Keo v Looh Chee Peng & Ors, where costs of over RM1 million were awarded after trial. While these cases may have involved different circumstances, they do provide some guidance on the quantum of costs that may be appropriate in complex commercial cases. [686] I note that in AmTrustee Berhad & Ors v Aldwich Bhd & Ors, which was heard before Justice Lau Bee Lan, the trial spanned 49 days involving multiple parties, with nine witnesses called. The complexity there was comparable to the present case, involving allegations of professional negligence against multiple defendants in relation to bond issuances. In that case, the court awarded significant S/N Yvwtb2AFpk50KUgpFho0w costs to the plaintiffs: RM350,000 against the 1st-3rd defendants, RM300,000 against the 4th defendant, RM150,000 against the 5th defendant, and RM200,000 against the 6th defendant (Ernst & Young), totaling RM1,000,000. This was in addition to RM100,000 awarded for the dismissal of a counterclaim. [687] In Looh Keo v Looh Chee Peng & Ors, Justice Liza Chan awarded substantial costs after a 49-day trial where 14 witnesses testified in a complex family dispute over beneficial ownership of shares in various companies. The case, like the present matter, involved serious allegations of fraud and breach of trust spanning multiple corporate entities. The awarded costs included RM823,890.61 to the 1st defendant in suit 443, RM572,182.69 to the 2nd and 5th defendants, and RM177,435.36 to the 3rd defendant, among others. [688] Most pertinently, in what have been referred to as “the BVI Suits” (Suit 443, Suit 560 and Suit 601), Justice Ahmad Fairuz awarded costs exceeding RM2,500,000 after a 47-day trial that spanned nearly three years. That case bore significant similarities to the present matter, involving complex allegations regarding beneficial ownership of shares across multiple jurisdictions, with disputes between family members and associates of the deceased TSS. The court there awarded nearly RM825,000 to one defendant alone, with several other defendants receiving amounts of RM100,000 and above. S/N Yvwtb2AFpk50KUgpFho0w [689] Nevertheless, I must ensure that the costs awarded are reasonable and proportionate. The purpose of costs is to reasonably compensate the Plaintiffs for expenses incurred in litigation, not to further punish the Defendants. No Joint and Several Liability for Costs [690] Although I found the Defendants jointly and severally liable for the conspiracy, I do not consider it appropriate to order that costs be paid jointly and severally. My reasons are as follows. [691] First, while the Defendants were found jointly and severally liable for the damages arising from the conspiracy, the costs incurred by the Plaintiffs in establishing the case against each Defendant varied based on the extent of that Defendant's involvement, the duration of their participation in the conspiracy, and the strength of their defence. [692] Second, joint and several liability for costs could result in an unfair burden on Defendants with limited involvement in the conspiracy, particularly if other more culpable Defendants lack the means to pay. This could lead to a disproportionate outcome where a peripherally involved Defendant bears the entire costs burden. S/N Yvwtb2AFpk50KUgpFho0w [693] Third, the court should maintain consistency with the rationale expressed in my Broad Grounds of Judgment (at paragraph 573) and in above in paragraph 615 that “the involvement of the various Defendants in the conspiracy varied significantly in nature and degree” and that “a uniform order... against all Defendants would be disproportionate given these varying degrees of culpability.” [694] Fourth, apportioning costs individually allows the court to tailor the award to reflect the respective culpability and involvement of each Defendant, ensuring a more nuanced and proportionate outcome. [695] Taking into account all the relevant factors, including the exceptional complexity of the case, the volume of work involved, the varying degrees of involvement of the Defendants, and the need to ensure that the total costs awarded are reasonable and proportionate, I award costs as follows: a) For CIDL the 1st Defendant: RM450,000 - This reflects CIDL's central role in the conspiracy, particularly through the sham CIDL Management Agreement which was a primary vehicle for siphoning funds from the Plaintiffs. b) For Pacific Victor, the 2nd Defendant: RM150,000 - This takes into account D2's more S/N Yvwtb2AFpk50KUgpFho0w limited involvement, primarily in relation to the Tenancy Agreements with P8, while recognising that establishing even this more limited involvement required significant work by the Plaintiffs. c) For D3 (Personal Representatives of TSS, Malaysian Will), the 3rd Defendant: RM300,000 - This substantial figure reflects TSS's pivotal role as an architect of the conspiracy, while acknowledging that the Personal Representatives themselves were not personally culpable. d) For Andrew, the 4th Defendant: RM250,000 - This higher amount is appropriate given Andrew Teh's significant involvement during the Second Period and his active role in perpetuating the conspiracy after TSS's demise. e) For Valarie, the 5th Defendant: RM150,000 - This lower figure reflects Valarie Teh's more limited involvement, primarily in relation to the share allotment and oppression proceedings. f) For Maria, the 6th Defendant: RM150,000 - Similarly, this figure reflects Maria Wu's relatively limited direct involvement in the conspiracy, while acknowledging her role in the S/N Yvwtb2AFpk50KUgpFho0w fraudulent schemes through her ownership of D2. g) For TS Goh, the 7th Defendant: RM200,000 - This moderate figure balances D7's significant involvement in the conspiracy during the Second Period with the fact that he was not one of its principal architects. h) For Huang, the 8th Defendant: RM200,000 - This figure reflects Huang Guoquan's substantial role in implementing aspects of the conspiracy, particularly in relation to the CIDL Management Agreement. i) For Yong Chooi Lan, the 10th Defendant: RM150,000 - This amount reflects Yong Chooi Lan's significant involvement, particularly in relation to the YCL Loan Agreement and the initiation of winding-up proceedings against GP BVI. j) For TSH, the 11th Defendant: RM200,000 - This figure acknowledges Tan Say Han's substantial role in the conspiracy, particularly his active participation in strategies to entrench control over the Plaintiffs' companies. S/N Yvwtb2AFpk50KUgpFho0w k) For Fai Fong, the 12th Defendant: RM150,000 - This lower amount recognises what I previously described as Fai Fong's “more peripheral role compared to the architects of the scheme,” while still acknowledging that substantial work was required to establish her involvement. l) For D13 (Personal Representatives of TSS, UK Will) , the 13th Defendant: RM250,000 - This reflects TSS's central role in the conspiracy, while appropriately reduced from D3's amount given the jurisdictional aspects of the UK estate. m) For D14 (Personal Representatives of TSS, HK Will) , the 14th Defendant: RM250,000 - Similarly, this figure reflects TSS's pivotal role, with appropriate adjustment for the Hong Kong estate. n) For D15 (Personal Representatives of TSS, China Will) , the 15th Defendant: RM150,000 - This lower amount reflects both TSS's central role and the more limited assets within the China Will, as well as the 15th Defendant's minimal participation in the proceedings. [696] The total costs awarded amount to RM3,000,000, which I consider to be reasonable and proportionate given the S/N Yvwtb2AFpk50KUgpFho0w exceptional complexity of the case and the substantial work involved. [697] I note that this amount is significantly lower than the sum sought by the Plaintiffs. However, I must ensure that the costs awarded are reasonable and proportionate, taking into account the overlap in work done against different Defendants and the varying degrees of involvement of the Defendants. [698] This award is consistent with precedent in comparable complex commercial cases. In AmTrustee Berhad & Ors v Aldwich Bhd & Ors, the court awarded RM1,000,000 in costs against multiple defendants after a 49-day trial. In Looh Keo v Looh Chee Peng & Ors, costs awarded included sums of RM823,890.61 against one defendant alone. In “the BVI Suits,” Justice Ahmad Fairuz awarded costs exceeding RM2,500,000 in total for a trial of comparable length and complexity. [699] While my award of RM3,000,000 exceeds these precedents in absolute terms, it is justified by several factors: a) this case involved 33 days of trial, 15 defendants, 13 factual witnesses, 2 expert witnesses, and over 7,000 pages of documentary evidence; S/N Yvwtb2AFpk50KUgpFho0w b) the conspiracy spanned over two decades and involved cross-border transactions across multiple jurisdictions; c) inflation and increased legal costs since the time of the AmTrustee judgment (2017) must be considered; and d) the need to provide adequate compensation to the Plaintiffs for the extensive work required to unravel such a complex conspiracy. [700] I also note that the costs awarded against the Personal Representatives of TSS (D3, D13, D14, and D15) are to be paid out of the respective estates they represent, not personally. This is consistent with my finding that “D3's contention that there is no allegation of wrongdoing against Fai Fong personally is accepted. The Plaintiffs' claim is against the estate of TSS, not against Fai Fong in her personal capacity.” Disbursements [701] The Plaintiffs seek disbursements in the sum of RM1,181,257.56, including expert fees and disbursements of Martin Wong Wing Hoi (HKD250,000, approximately RM142,607.67) and Sajjad Aktar of PKF-CAP Advisory Partners Pte Ltd (SGD294,461.01, approximately RM976,622.98). S/N Yvwtb2AFpk50KUgpFho0w [702] Pacific Victor, Valarie, Maria, D13 and D14 argue that the substantial expert fees claimed should not be recoverable as standard costs, particularly as these experts primarily addressed matters related to the more complex aspects of the case not involving these Defendants. [703] The disbursements claimed by the Plaintiffs include significant expert fees. In my Broad Grounds of Judgment, I found that the expert testimony of Sajjad Akhtar and Martin Wong provided substantial assistance to the court in determining the issues in this case Broad Grounds as stated in the 86, 89 & 90 of the Broad Grounds of Judgment) and reflected in paragraphs 106, 109 and 110 above. [704] The use of expert evidence in this case mirrors that in AmTrustee Berhad & Ors v Aldwich Bhd & Ors, where expert witnesses like Sajjad Akhtar were similarly engaged to provide specialist financial analysis. In that case, just as in the present matter, expert testimony was crucial in unravelling complex financial transactions and determining liability. I note that Sajjad Akhtar also provided expert testimony in that case, highlighting the recognition of his expertise in such complex commercial matters. [705] Given the complexity of the financial transactions involved in this case, expert testimony was essential to assist the court in understanding the financial implications S/N Yvwtb2AFpk50KUgpFho0w of the fraudulent schemes. The experts provided valuable insights that helped to unravel the complex financial transactions and determine the extent of the financial loss suffered by the Plaintiffs. [706] I am satisfied that the expert fees and other disbursements claimed by the Plaintiffs were reasonably incurred and are recoverable. These expenses were necessary for the proper presentation of the Plaintiffs' case and the determination of the complex issues involved. [707] Unlike the costs awarded individually against each Defendant, I order that the disbursements be paid jointly and severally. This distinction is appropriate for several reasons. [708] First, the disbursements, particularly the expert fees, were incurred to establish the overall conspiracy and the financial implications of the fraudulent schemes, rather than to establish the specific involvement of individual Defendants. The experts analysed the financial transactions of the group as a whole, providing evidence that was relevant to establishing the conspiracy against all Defendants. [709] Second, the nature of disbursements differs fundamentally from legal costs. While legal costs can be apportioned based on the work required to establish the S/N Yvwtb2AFpk50KUgpFho0w case against each Defendant, disbursements such as filing fees, expert fees, and transcription costs are generally incurred for the case as a whole. [710] Third, joint and several liability for disbursements ensures that these out-of-pocket expenses incurred by the Plaintiffs are fully recoverable, regardless of the financial circumstances of individual Defendants. Since these are actual expenses rather than professional fees, fairness dictates that the Plaintiffs should be able to recover them in full from any Defendant found liable in the conspiracy. [711] Fourth, this approach is consistent with the principle that the Defendants were engaged in a common conspiracy, acting in concert to defraud the Plaintiffs. While their individual roles and culpability may have varied, justifying individual liability for costs, they were all part of the same wrongdoing that necessitated these disbursements. [712] Accordingly, I allow the disbursements claimed by the Plaintiffs in the sum of RM1,181,257.56, to be paid jointly and severally by the Defendants (except D9, against whom the Plaintiffs are not pursuing their claims). CONCLUSION AND ORDER [713] In conclusion, I order as follows: S/N Yvwtb2AFpk50KUgpFho0w a) The Defendants shall pay the Plaintiffs costs in the following amounts: i) CIDL, the 1st Defendant: RM450,000 ii) Pacific Victor, the 2nd Defendant: iii) D3 (Personal Representatives of TSS, Malaysian Will), the 3rd Defendant: RM300,000 iv) Andrew, the 4th Defendant: v) Valarie, the 5th Defendant: RM150,000 vi) Maria, the 6th Defendant: RM150,000 vii) TS Goh, the 7th Defendant: RM200,000 viii) Huang, the 8th Defendant: RM200,000 ix) Yong Chooi Lan, the 10th Defendant: x) TSH, the 11th Defendant: RM200,000 S/N Yvwtb2AFpk50KUgpFho0w xi) Fai Fong, the 12th Defendant: xii) D13 (Personal Representatives of TSS, UK Will), the 13th Defendant: xiii) D14 (Personal Representatives of TSS, HK Will), the 14th Defendant: xiv) D15 (Personal Representatives of TSS, China Will), the 15th Defendant: b) The costs awarded against D3, D13, D14, and D15 are to be paid out of the respective estates they represent, not personally. c) The costs ordered in paragraph (a) above shall be paid individually by each Defendant and not jointly and severally. d) The Defendants (except the 9th Defendant, GY Huang) shall jointly and severally pay the Plaintiffs disbursements in the sum of RM1,181,257.56. S/N Yvwtb2AFpk50KUgpFho0w e) I certify fees for two Counsel pursuant to Order 59 Rule 14 of the Rules of Court 2012. 21 October 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiffs: Alan Gomez with P Gananathan, Khoo Sher Rynn, Shasha Chin Sim Cheng and Lee Xue Rui (Messrs Mohanadass Partnership) For the 1st and 8th Defendants: Ng Sai Yeang with Nor Azanida Alladin (Messrs Raja, Daryll & Loh) For the 2nd, 5th, 6th, 13th and 14th Defendants: Sean Yeow with Hooi Chung Wai (Messrs Lee Hishamuddin Allen & Gledhill) S/N Yvwtb2AFpk50KUgpFho0w For the 3rd and 12th Defendants: Dhinesh Baskaran with Serena Azizuddin and Wong Jia Jing (Messrs Shearn Delamore & Co) For the 4th and 10th Defendants: Sharon Chong with Gooi Yang Shuh (Messrs Skrine) For the 7th Defendant: Rachel Ng Li Hui with Eunice Wong (Messrs Thomas Philip) For the 11th Defendant: Dato Sri James Chow with Pey Shau Xuan (Messrs Chow Kok Leong & Co.) For the 15th Defendant: Oh Saw Khim (Messrs Oh Teick Aun & Co) S/N Yvwtb2AFpk50KUgpFho0w
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